Discovery in a contested probate proceeding is generally governed by what Surrogate’s Court practitioners call the “three/two” rule (22 NYCRR 207.27). This rule limits discovery to the “three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent’s death, whichever is the shorter period” (id.). It is a “pragmatic rule" intended to prevent the abuses associated with a “runaway inquisition” or “wild goose chase” (Estate of Das, NYLJ, 5/1/2009, at 31 [Sur Ct Nassau County]).

Notwithstanding that general rule, however, the time period for discovery may be extended by the Surrogate’s Court when “special circumstances” exist, such as when “a scheme of fraud or a continuing course of conduct of undue influence” is alleged (id.). For example, in Matter of Kaufman, the objectants sought discovery with respect to the entire period of cohabitation between the proponent of the decedent’s will and the decedent, which lasted from September 1948 until the decedent’s death in April 1959 (11 AD2d 759, 759-60 [1st Dept 1960]). The objectants argued that the departure from the three/two rule was warranted because the proponent’s long relationship with the decedent gave rise to testamentary capacity and undue influence concerns (id.). Although the Surrogate’s Court denied the objectants’ motion, the Appellate Division reversed, reasoning that a full examination of the decedent’s relationship with the proponent was warranted (id.).   




However, conclusory allegations of “special circumstances” will not suffice. In Estate of Das, the Surrogate’s Court recently denied the objectant’s motion to depart from the three/two rule (Das, supra). There, the decedent died in July 2002, but the petitioner, the decedent’s son, did not offer the decedent’s will for probate until September 2006 (id.). The petitioner attempted to explain the delay by filing an affidavit of lateness stating that he had trouble locating the deed to real property the decedent owned in India (id.). Nevertheless, the objectant, another one of the decedent’s sons, filed objections to probate, alleging that the will was the product of fraud, duress, and undue influence, among other grounds (id.).


The objectant moved to expand the three/two rule for discovery, while the petitioner cross-moved for an order appointing him to act as Executor of the decedent’s estate (id.). In support of his motion, the objectant argued that “special circumstances” existed, justifying the requested departure from the three/two rule (id.). Specifically, the objectant asserted that: (1) “the petitioner and his wife sold property owned by the decedent during the decedent’s lifetime;” (2) “there was a delay in offering the will for probate;” (3) “the petitioner exercised a health care proxy ‘resulting in the decedent’s death’;” (4) “the petitioner failed to investigate injuries sustained by the decedent as the result of a fall in the hospital and did not bring a wrongful death action;” (5) “the purported will reflects a ‘fatal disregard for forced heirship laws of India’;” (6) “the proposed executor[] and his counsel ‘displayed conduct during the probate proceedings including but not limited to initial non-responsiveness followed by less than adequate disclosure’;” and (7) the “fact that [the] proposed executor’s wife has and continues to wield undue influence over the estate is further highlighted by her recent communiqué with an Indian attorney on the forced heirship laws of India” (id.).


Upon considering the objectant’s contentions, the court concluded that there were no special circumstances to justify departing from the three/two rule (id.). The court reasoned that there were “no allegations of a ‘scheme to defraud’ or a ‘continuing course of conduct of undue influence” (id.). As a result, the court denied the objectant’s motion to expand the three/two rule for discovery (id.).


While the three/two rule governs discovery in probate contests, it should not serve as an absolute bar to obtaining discovery of activities that occur outside of the permissible period when special circumstances exist.