The following papers were considered in determining this contested motion:Notice of Motion, Affirmation in Support, with Exhibits 1, 2Affirmation in Opposition with Exhibits 3Reply Affirmation in Support of Motion 4DECISION and ORDER In this contested probate proceeding, Anthony Giaquinto (Anthony) and Frances Wakefield (Frances, and together with Anthony, the objectants) filed the instant motion on February 14, 2019, seeking an order of the court pursuant to CPLR 3101 et seq. extending the period of discovery for twelve months beyond the limits established by 22 NYCRR 207.27, and permitting further examination of the attorney-drafter and production of documents related to the extended time period. Opposition to the instant motion was interposed by Mary Giaquinto (Mary) and Joan Theodos (Joan, and together with Mary, the petitioners).BackgroundLillian Gennarelli (the decedent) died on January 9, 2017, at the age of 98. She was survived by three nieces and nephews, namely Anthony, Frances and Frank Giaquinto (Frank).1 On March 2, 2017, the petitioners offered for probate a written instrument dated March 30, 2012, which purports to be the last will and testament of the decedent (the propounded instrument).2 Pursuant to the terms of the propounded instrument, the decedent made a number of specific bequests, including, inter alia, $50,000.00 each to Frank, Frances and Anthony, $20,000.00 each to Joan and to her longtime caregiver, Deborah Broomes (Broomes), and $25,000.00 to each of seven Catholic charitable organizations. The decedent bequeathed her personalty to Mary, to be distributed as she sees fit, and the residue of the decedent’s estate, valued at approximately $6,500,000.00, is bequeathed to the Eternal Word Television Network, a non-profit religious broadcasting company (ETWN).On September 14, 2017, Anthony and Frances filed verified objections to probate, asserting that i) the propounded instrument was not duly executed, ii) the decedent lacked testamentary capacity, and iii) the propounded instrument is the product of fraud and/or the exercise of undue influence by any or all of the petitioners and the attorney-drafter, Paul Golinski, Esq. (the attorney-drafter).The Instant MotionThe objectants move for an extension of the so-called “3-2 rule,” which limits discovery in contested probate proceedings to a “three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent’s death, whichever is the shorter period.” 22 NYCRR 207.27. This period, however, may be extended “upon the showing of special circumstances.”The objectants assert, and it is undisputed, that the decedent and her husband executed reciprocal wills on October 31, 2008 (the 2008 instrument), under the supervision of the same attorney-drafter. The 2008 instrument names the decedent’s husband as executor and primary beneficiary, after certain pre-residuary bequests. In the event of her husband’s prior death, the 2008 instrument differs in its provisions from the propounded instrument only minimally, in that i) Frances, rather than Joan, is nominated to serve as successor co-executor with Mary, ii) $25,000.00 is bequeathed to each of her husband’s ten nieces and nephews, iii) there are no pre-residuary bequests to either Joan or Broomes, and iv) the recipient of one of the pre-residuary bequests to Catholic charitable organizations is changed. The residuary bequest to ETWN, however, is identical.The objectants assert that the attorney-drafter was associated with a “Committee” which lobbied Cablevision to include ETWN programming in its offerings. The objectants assert that two prior testamentary instruments (the prior instruments), purportedly executed in 1973 and 1980, did not contain a “mega-residuary” bequest, but rather directed disposition to the decedent’s and her husband’s family members. The objectants assert that the attorney-drafter’s preparation of both the 2008 instrument and the propounded instrument, whose provisions benefit a charitable organization which he purportedly supported, constitutes “special circumstances” warranting expansion of the 3-2 rule to include additional examination and discovery related to the preparation and execution of the 2008 instrument. In support of their motion, the objectants attach copies of i) the propounded instrument, ii) a power of attorney executed by the decedent in favor of Mary and the attorney-drafter on January 8, 2009 (the power of attorney), iii) the 2008 instrument, iv) an unexecuted testamentary instrument dated August 9, 1980, v) an undated and unexecuted testamentary instrument purportedly prepared in 1973, and vi) the objections interposed to the underlying probate petition.In opposition, the petitioners assert that the objectants have failed to demonstrate “special circumstances” sufficient to warrant expansion of the general rule governing discovery in contested probate proceedings. The petitioners note that discovery has been ongoing for sixteen months, resulting in 38 hours of testimony from six depositions as well as the production of a trove of documentary evidence. The petitioners note particularly that the attorney-drafter has been examined twice, over a period of ten hours. They assert that discovery to date has revealed no evidence to support the objectants’ assertions regarding the decedent’s capacity, the lack of due execution or any exercise of undue influence, and that the instant motion is merely a “fishing expedition.” In support of their opposition, the petitioners proffer i) a copy of a testamentary instrument executed by the decedent’s husband’s contemporaneously with the 2008 instrument, ii) a copy of the 2008 instrument with handwritten alterations initialed by the decedent reflecting changes she wished to be reflected in the propounded instrument, iii) a copy of the deposition testimony of Broomes, iv) a copy of the deposition testimony of Frances, and v) a copy of the deposition of Anthony.In reply, the objectants assert that an extension of the parameters of permitted discovery is warranted to explore the development of the decedent’s ultimate testamentary plan. They assert that the 2008 instrument and the power of attorney, in and of themselves, are sufficient to support the court’s exercise of its discretion in expanding the period of time open for discovery. The objectants assert that the residuary bequest, constituting the vast bulk of the decedent’s estate, was first reflected in the 2008 instrument, and that the significance of this shift in testamentary scheme must be explored. They further assert that the execution of the power of attorney, shortly after the death of the decedent’s husband, created a confidential relationship between the decedent, Mary and the attorney-drafter that requires further investigation.DiscussionCPLR 2101(a) provides that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action.” In contested probate proceedings, the relevant time frame for discovery is confined to the period of three years prior to the date of the propounded instrument and two years thereafter, or to the date of the of the testator’s death, which ever is earlier. The 3-2 rule “is not inflexible, since it is subject to exception in the case of special circumstances.” Matter of Bogen, 2014 N.Y. Misc. LEXIS 4826 *23 (Surr Ct New York County). A determination whether to extend the 3-2 rule guiding the parameters of discovery in contested probate proceedings lies within this court’s discretion. Matter of Duzhansky, 153 A.D.3d 189 (2d Dep’t 2017).In the instant matter, the 3-2 rule runs from March 30, 2009, to March 30, 2014. The objectants seek to enlarge the time frame for discovery twelve months, to March 30, 2008, to permit examination regarding the execution of the power of attorney in January 2009 and the 2008 instrument. The objectants rely for support primarily on the decision in Bogen, which permitted the extension of discovery where “persons substantially benefitted under the will were ‘stranger[s] to the blood’ as to whom there is some evidence of a design upon [the testator's] property (citations omitted, emphasis added).” Id. In Bogen, the testator executed a series of testamentary instruments during a fifteen-month time period from 2008 through early 2009, approximately two years before his death at the age of 91. The instruments altered his prior testamentary scheme, which had previously benefitted his family, to benefit an unrelated woman whom he had recently met, as well as the woman’s daughter and the daughter’s boyfriend. The testator’s estate was valued at over $13,000,000.00, and included valuable real property in Manhattan. The court exercised its discretion to permit extension of the 3-2 rule to allow discovery of matters occurring as early as 2004, the date of the beneficiaries’ first acquaintance with the testator.The objectants assert that extension of the 3-2 rule is warranted, as the execution of the power of attorney in 2009 creates a confidential relationship between the decedent, Mary and the attorney-drafter, and is only three months outside the traditional limits on discovery. Notably, while the objectants emphasize the power of attorney as “the critical document with regard to the issues of undue influence and fraud,” they make no assertion that the power of attorney was utilized in any manner either by Mary or the attorney-drafter after its execution to influence the decedent or to control her affairs. While the existence of “special circumstances” warranting extension of the 3-2 rule may be based on “allegations of a scheme of fraud or a continuing course of conduct or undue influence,” such allegations must be “evidenced by facts.” Matter of Partridge, 141 Misc. 2d 159, 160 (Surr Ct. Rockland County 1988).The court notes that the power of attorney was executed following the preparation and execution of the 2008 instrument, the initial instrument which benefitted the network. The 2008 instrument was executed as a reciprocal will, mirroring an instrument executed simultaneously by the decedent’s husband. The testamentary dispositions in the propounded instrument differ only minimally from those of the 2008 instrument, and the objectants do not specifically assert that the power of attorney was used to effect any changes to the propounded instrument that benefit either Mary or the attorney-drafter directly. They are unable to provide any evidence of a scheme to defraud or improperly influence the decedent, beyond mere speculation, notwithstanding comprehensive discovery to date. See Partridge, supra; Matter of Duzhansky, 2014-91/A, NYLJ 1202766011394, at *1 (Surr Ct. Kings County, decided August, 2, 2016).The mere existence of the power of attorney, absent any evidence of its use by either Mary or the attorney-drafter to manage or influence the decedent’s affairs, is insufficient to justify expansion of the parameters of discovery. Neither Mary nor the attorney-drafter benefit under the propounded instrument, and a single statement, unsupported and without explanation, that the attorney-drafter was somehow allied with an unidentified “committee” to influence a broadcasting company on behalf of the residuary beneficiary is so vague as to be meaningless. Accordingly, the objectants having failed to demonstrate the existence of special circumstances warranting expansion of the 3-2 rule of discovery, the instant motion is denied.All other arguments of the petitioners have been considered and found unavailing.This constitutes the decision and order of the court.Date: March 12, 2019Brooklyn, New York
