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How do I object to the probate of a Will?

Updated: Jan 14

A Will contest is a legal proceeding in the Surrogate’s court that is available for an individual who seeks to question the validity or fairness of a Will. In New York, the individual must have standing to challenge the Will, meaning he or she must be an interested party who would be financially affected by the outcome of the Will’s probate. Interested parties typically include beneficiaries, heirs-at-law, or individuals who would partake in the decedent’s estate if the Will were deemed invalid by the court. To contest a Will, it is critical to file your objection within a specific timeframe, which is typically within three years from the date the Will was admitted to probate before the statute of limitations expires. There are grounds for contesting a Will in New York, including lack of testamentary capacity, undue influence, fraud or forgery, and improper execution.


A potential Will objectant is permitted to gather evidence from the other side to determine whether he or she will formally object to the probate of the Will. Among the various discovery tools that will be utilized during this phase of the litigation are SCPA 1404 depositions. SCPA 1404 depositions provide a process for obtaining the testimony of individuals who may have relevant information about the will. Interested parties can request the court’s permission to conduct these depositions by filing a motion with the Surrogate’s Court. The motion must demonstrate the relevance of the testimony to the probate proceeding and explain why the deposition is necessary. In evaluating whether the motion for the SCPA 1404 deposition is granted, the court considers factors such as the significance of the proposed testimony, the necessity of the deposition, and any potential prejudice or burden to the witnesses.


If the court grants permission for the SCPA 1404 deposition, it will be conducted inside or outside of the court. A court reporter will be present to ensure the testimony is recorded under oath. During the deposition, the attorneys for both parties involved in the probate proceeding will have the opportunity to question the deponent, with the purpose of eliciting information and gathering evidence that may be relevant to the validity of the will. The witnesses, attorney draftsperson, Will proponent, and potential Will objectant may also attend the 1404 deposition. The testimony obtained during an SCPA 1404 deposition can be used as evidence during the probate proceeding, presented at trial, or during settlement negotiations to support the arguments of the parties involved.


In considering the costs for conducting an SCPA 1404 deposition, the burden is typically imposed on the party seeking the deposition. The costs may include court reporter fees, transcript preparation, venue costs associated with obtaining a suitable location for conducting the deposition, and other administrative costs. However, the court may apportion costs among the parties. When making this determination, the court will consider the nature of the case, the financial resources of the parties, and the importance of the deposition testimony.


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