Matter of Griffith

Full title: In the Matter of the Estate of HELEN D. GRIFFITH, Deceased

Court: Surrogate's Court, Erie County

Date published: Jan 24, 1966

48 Misc. 2d 1048 (N.Y. Misc. 1966)

266 N.Y.S.2d 564

Opinion

January 24, 1966

William B. Mahoney for proponent.

Lipsitz, Green, Fahringer, Roll, Schuller James ( Herald P. Fahringer, Jr., of counsel), for objectant.

WILLIAM J. REGAN, S.

This is a motion by proponent for a protective order limiting the taking of the depositions upon oral questions of Patricia D. Starrett and Howard H. Starrett. Proponent seeks this order to limit the questioning to acts, events or circumstances arising prior to or on the 12th day of November, 1962, and further to preclude any examination of the named persons or any facts or circumstances subsequent to the execution of the last will and testament of decedent on November 12, 1962.

The contestant desires to examine the sole beneficiaries and proponent of the will concerning matters bearing on undue influence or fraud perpetrated. The general rule of thumb, as set out in many previous cases and often used in this court, is that the examination before trial may concern itself with a period of three years before the will is executed and a period of two years subsequent to such execution. ( Matter of Frank, 165 Misc. 411.)

The past few years have shown a tendency of courts to broaden the scope of examinations preparatory to trial and to provide for full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.

The examination of facts or circumstances subsequent to the execution of the will, in this court's opinion, is proper, especially as it relates to a continuous course of conduct commencing prior to the date of execution of the will. Where there is evidence of facts and circumstances relating to financial transactions between the parties to be examined and the decedent prior to the will's execution, any facts or circumstances which are continued following the execution of the will may show a continuing course of conduct which could bear weight on the question of undue influence and/or fraud.

The court will therefore deny proponent's motion for a protective order and order the examination of the proponent to continue.