SCPA § 1404 requires that “at least two attesting witnesses must be produced before the court and examined before a written will is admitted to probate.” Very often, litigators think of examinations pursuant to SCPA § 1404 as examinations before trial that are conducted under Article 31 of the CPLR. This is understandable given that the statute itself makes numerous references to CPLR article 31. For example, SCPA § 1404(2) provides that the Surrogate’s Court may issue a commission under CPLR 3113 to take testimony “where a will offered probate is on file in a court or public office under the laws of which jurisdiction the will cannot be removed.” CPLR 3113 sets forth before whom a deposition may be taken, the oath of the witness, the allowance of examination and cross-examination, and it permits the parties to stipulate to conduct a deposition by telephone or other remote electronic means. Additionally, SCPA § 1404(4) expressly provides that the party conducting the examination is entitled to “all rights granted under article 31 of the civil practice law and rules with respect to document discovery.” SCPA § 1404(5)(a) and (b) provide that the testator’s estate pays the costs associated with the pre-objection examinations of the first two attesting witnesses, and that article 31 of the CPLR governs the costs associated with the other pre and post-objection examinations conducted in the proceeding. And of course, an examination under SCPA § 1404(4) of the preparer of a will, the attesting witnesses to a will’s execution and, where the situation warrants, the nominated executor of a will, is where the witness gives sworn testimony before a person authorized to administer oaths—i.e. a deposition.
But, while SCPA § 1404 may incorporate certain provisions of article 31 of the CPLR, it is its own, separate and unique statute. An examination of an attesting witness sought pursuant to SCPA § 1404(4) before objections to probate are filed is not simply a deposition conducted under article 31 of the CPLR. This is apparent from a recent decision in the Estate of Wood, NYLJ, Aug. 7, 2019, p. 23, col 1 (Sur Ct, Bronx County). The testator was survived by his spouse, one son, and two daughters. According to the court, the will offered for probate nominated the testator’s spouse as executor. However, the instrument itself was not dated or signed. Rather, it contained an apparent self-proving affidavit that was dated and signed by the testator and witnesses and notarized. The testator’s son requested examinations pursuant to SCPA § 1404. Claiming that the attorney draftsman and one attesting witness lived outside of New York State, and that the estate lacked the funds necessary to pay for the in-person examinations thereof, the testator’s spouse requested that the SCPA § 1404 examinations be conducted by written interrogatories. The son objected and insisted that the spouse produce the witnesses in person for examination.
CPLR 3108 allows for a deposition to be conducted by written questions when either (1) the examining party and witness so stipulate or (2) when the testimony is to be taken without the state. That statute further provides that the court may issue a commission where necessary or convenient for taking a deposition outside the state. It would seem that if the examinations sought in Estate of Wood, supra, were depositions under CPLR article 31, then conducting them by written question would be permitted under CPLR 3108. But, the Court denied the spouse’s request and directed that these pre-objection examinations be conducted by personal appearance. It specifically noted that under SCPA § 1405(2), where an attesting witness is outside of the state, and his or her testimony can be obtained with reasonable diligence, the court “may and shall upon the demand of any party require his testimony be taken by commission.” Notably, the court did not even refer to CPLR 3108, thus indicating that the rules governing the how pre-objection examinations are to be conducted lie within article 14 of the SCPA and not article 31 of the CPLR.