Surrogate’s Court Procedure Act

Question: My sister wants me to sign a document that allows her to probate my mother’s will. The problem is that the will favors my sister, and I think the circumstances around the will are suspect. Is there a way I can get more information about the will signing?

Answer: The document  that  your sister is asking you to sign is called a Waiver of Process;  Consent to Probate. The purpose of the Waiver is twofold. First, by signing the Waiver you are consenting to the Will being admitted to Probate. Second, you are consenting to your sister being named as executor of your mother’s estate.

If you decide that you want more information about the will signing you should not sign the Waiver. At that point, the Surrogate’s Court will issue a citation. The citation provides a date and time for you to appear before the Court. On the citation return date, you, or your attorney, would appear before the Surrogate and request 1404 examinations.

Section 1404 of the Surrogate’s Court Procedure Act (“SCPA”) provides for the examination or deposition of the attorney draftsperson and the witnesses to your mother’s will. The 1404 proceeding will provide your first glimpse into whether the law was properly followed when your mother signed her will, whether she was competent to sign her will and/or whether she was under undue influence or duress.

 Document discovery is also permitted in the context the 1404 proceeding. The time period allowed for discovery is contained to the three years prior to your mother signing the will and the 2 years after signing, or your mother’s date of death, whichever is shorter.

 Once the depositions of the attorney draftsperson and witnesses are complete and the discovery demands and transcripts have been reviewed you can make an informed decision regarding whether to file objections to your mother’s will.

If you decide that you want to pursue 1404 depositions, you should consider when to conduct the depositions since timing affects who bears the cost. The SPCA provides that the estate is responsible for the costs of conducting the examinations if they are conducted before objections to the will are filed. Conversely, you would be responsible for the costs if you conduct the 1404 depositions after the objections are filed.