While discovery in the Surrogate’s Court is generally guided by the provisions of the CPLR, it brings with it many unique issues and controversies. For example, while CPLR §3101 directs that “there shall be full disclosure of all matters material and necessary in the prosecution or defense of an action,” Uniform Court Rule 207.27 circumscribes discovery in probate proceedings, absent a showing of special circumstances, to the period three years prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent’s death, which is the shorter period. Moreover, CPLR 4503(b) creates an exception to the attorney-client privilege in actions involving the probate, validity or construction of a will. Within this context, this month’s column will examine decisions addressed to matters affecting discovery in the Surrogate’s Court, including the privilege respecting material prepared in anticipation of litigation, disclosure of tax returns, open commissions, and the production of business records.
In Anticipation of Litigation
In In re West, the Surrogate’s Court, New York County (Sur. Anderson), explored the scope and definition of the qualified privilege that attaches to material prepared in anticipation of litigation.
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