Opinion
September 7, 1965
Fred R. Scharf for proponent.
Magavern, Magavern, Lowe Beilewech ( Ward Dahlgren of counsel), for objectants.
In this probate proceeding objectants have asked that the court rule on proponent's refusal to furnish objectants with a "letter of instructions" dealing with the preparation of the will.
One of the subscribing witnesses is the attorney who prepared and supervised the execution of and attested the will in question. A partial examination has been had pursuant to section 141 of the Surrogate's Court Act. During the course of the examination the attorney draftsman was asked to produce a certain "letter of instructions" received by him from the testator and pertaining to the preparation of the will. This was objected to on the ground that objectants seek information not properly the subject of examination under section 141 of the Surrogate's Court Act.
This section provides that "Any party to the proceeding, before or after filing objections to the probate of said will, may request the oral examination of the subscribing witness thereto and may examine any or all of the subscribing witnesses and any other witness produced by the proponent before the surrogate."
The objectants, pursuant to such examination, are entitled to a full inquiry of all the relevant facts and circumstances known to such witnesses with respect to the preparation, execution and validity of decedent's alleged will. ( Matter of Baker, 160 Misc. 862.)
The letter requested by objectants from the attorney draftsman relates to the preparation, execution and validity of the alleged will and accordingly falls within the scope of section 141 of the Surrogate's Court Act. ( Matter of Altschul, 142 N.Y.S.2d 484.)
Further, it should be noted that once the issue is raised it becomes incumbent upon this court to have this "letter of instructions" produced for its own examination in order to fully comply with section 144 of the Surrogate's Court Act wherein it expressly provides: "Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will, and the validity of its execution."
It is accordingly the decision of this court that proponent produce for examination by objectants the "letter of instructions" herein referred to and that, insofar as the examination under section 141 of the Surrogate's Court Act may be incomplete, it may be continued upon application by objectants.