This is a motion to compel discovery brought by potential contestants to the probate of the propounded will of decedent J. Lawrence Werther. Decedent died on October 18, 2018, survived by his three children, Ellen, Stephen and Jeanne Werther. An instrument dated October 3, 2017, has been offered for probate by decedent’s daughter, Ellen (“proponent”). Stephen and decedent’s granddaughter Anna (“movants”) are both disadvantaged by the will and have filed a demand for document production as a prelude to 1404 examinations. They now seek to compel proponent to comply with their discovery demands. The propounded instrument directs that decedent’s assets pour into an inter vivos trust. The trust names proponent as trustee and provides for the following distribution upon decedent’s death: $100,000 to each of proponent’s two children; $100,000 to each of Stephen’s two children, to be held in trust until age 21; and $25,000 to decedent’s long-time housekeeper. The trust instrument gives proponent explicit discretion to 1) divide the trust remainder between proponent and a supplemental needs trust (SNT) for Jeanne’s lifetime benefit, and 2) allot a larger share to proponent. The trust specifically requires that the amount allotted to the SNT should allow Jeanne to be “reasonably maintained,” taking into account other funds available to her. Proponent is the remainder beneficiary and the sole trustee of the SNT. Both the will and the inter vivos trust contain in terrorem clauses. This proceeding is still in the pre-objection discovery phase. In accordance with a stipulated discovery schedule, movants served a timely demand for 38 categories of documents upon proponent on August 28, 2019. Proponent objected to some, but not all, of the demands. To date, however, the only discovery proponent has provided are HIPAA authorizations for medical records and the file of the attorney who drafted the propounded will, the latter of which was only provided after this motion had been filed. Proponent offers several blanket arguments for the proposition that she should not be required to produce any further documents. She argues 1) that movants have failed to meet their obligation to meet and confer with her counsel; 2) that compliance with the discovery demand would violate a Supreme Court order in another case; and 3) that the document demand is so overbroad, vague, and improper that it should be stricken in its entirety. Movants have demonstrated that they repeatedly attempted to resolve this dispute as required by court rule (22 NYCRR 202.7[c]) but argue that their efforts were effectively stymied by proponent’s counsel. As demonstrated in their exhibits, movants tried on multiple occasions over a period of nearly six months to schedule a “meet and confer” session. The one meeting date upon which they agreed was cancelled at the last minute by proponent’s attorney because he said that he was not feeling well. He did not offer any alternate date thereafter. Repeated efforts by movants’ counsel to set another date were unsuccessful; proponent’s counsel said he needed to check his calendar, would get back to them, or was “trying to coordinate” with his client, but no date was offered. Movants’ counsel finally requested a conference with a court attorney in an effort to move the matter forward. At the conference, proponent’s husband (an attorney who has subsequently appeared as co-counsel for proponent) informed the court and opposing counsel that no further discovery would be forthcoming because he believed that proponent was, or might be, constrained by a court order issued in a Supreme Court action between the same parties regarding a non-probate asset. There is no obligation of a party seeking discovery to hold back from seeking court intervention when further non-judicial efforts would be futile, as is clearly the case here (Scaba v. Scaba, 99 AD3 610 [1st Dept 2012]; Baulieu v. Ardsley Assoc., 84 AD3 666 [1st Dept 2011]; Herzog v. Sacko Delivery & Trucking, 115 NYS 3d [Sup Ct, Bronx County, May 17, 2019]). Nor is there merit to proponent’s claim that she would be in violation of a Supreme Court order if she provided any further discovery in this probate matter, nor, indeed, is it clear that any order constraining such discovery even exists. The Supreme Court action concerns the validity of a change of beneficiary on decedent’s retirement account at Morgan Stanley. The judge in that action, on learning that plaintiffs (movants here) would be ready to file a motion for summary judgment after receiving limited discovery from Morgan Stanley, directed the parties to limit their pre-motion discovery accordingly. Proponent has not provided a court order purporting to limit discovery in any further respect, nor any other evidence memorializing such a directive. In any event, it is not credible that an informal direction in an action concerning a non-probate asset would interfere in the course of discovery in this probate proceeding. Co-counsel for proponent participated in the Supreme Court proceeding and represented to this court that he would seek clarification from the Supreme Court as to the limits of the alleged order. The vague request he thereafter sent to the presiding justice for some kind of unspecified “guidance,” does not reference any order entered by that judge and only underscores the weakness of proponent’s argument. In any event, the subsequent transfer of the Supreme Court action to a different justice and the denial of summary judgment by that court renders such argument moot by this point. Further, this court rejects proponent’s tacit suggestion that discovery should not proceed here because of the risk of inconsistent decisions. In view of the disparate nature of the issues involved in the Supreme Court action and this probate proceeding, inconsistency of results cannot amount to a genuine concern. Proponent also argues that the document demand is so defective that it should be vacated in its entirety. While the demand may not be a perfect model of draftsmanship, it is not “palpably improper” as argued. As discussed herein, the document requests are largely intelligible, relevant, and reasonably tailored for the determination of whether movants have grounds to object to probate. Demands which were not objected to. Proponent made no objection to demands numbered 4, 5, 11, 12, 14, 15, 16, 17, 20, 22, 26, 27, 31, 34, and 35. In response to this motion, proponent’s counsel belatedly argues that demands 4 and 5 are burdensome. Such belated argument is inappropriate, since it deprives the demanding party of notice of the objections. In any event, these demands for existing videotapes of and voice mails by the decedent during the relevant time period (3 years before the will through date of death, 22 NYCRR 207.27) do not impose an unreasonable burden on proponent and may eventually be relevant to determination of decedent’s capacity and state of mind. Proponent is directed to provide the documents requested in these demands, as well as the demands listed above to which no objection has been lodged. Demands concerning provision of medical care or services. Demands numbered 8, 9, 10, 11, 12 and 13 seek documents concerning the provision of medical care or medical services to decedent by third persons or institutions. Proponent objected to each of these demands except 11 and 12 concerning hospitalizations. The objections allege that words such as “the care of the decedent,” “drivers,” “other paraprofessional persons,” “prescription and drug expenses,” and “concerning the decedent” are vague and ambiguous. In context, however, the meanings of these words are obvious and straightforward, and the demanded documents, or the names of the persons and institutions providing such services, along with HIPAA authorizations, must be provided so that movants can obtain decedent’s medical records. Demands seeking information about preparation and execution of testamentary instruments. Demand 6 seeks computer discs concerning the preparation or execution of the propounded will; demand 7 seeks documents concerning communications between decedent and any persons who were in communication with the attorneys with respect to the propounded will. There is no merit to proponent’s argument that the term “computer discs” and reference to “the attorneys” are vague and ambiguous. In context, the meaning of both challenged phrases is obvious. Proponent is directed to provide both computerized information and other communications with attorneys who drafted or were involved in the drafting or execution of the propounded instrument. Demand 25 seeks documents about will preparation outside of the 3-year/2-year time period provided for by 22 NYCRR 207.27. While courts must be particularly sensitive to the need for such discovery in cases where the propounded instrument contains an in terrorem clause (Matter of Nigro, NYLJ, Oct. 5, 2004 at 17, col 1, 2004 NYMisc LEXIS 3258*14 [Surr Ct, Nassau County]), the absence of any factual showing of special circumstances here constrains the court to limit the required response to the time period set out in the rule, except that copies of all prior executed wills must be provided (Matter of Manoogian, NYLJ Feb. 28, 2014, at 22, col 5, 2014 NY Misc Lexis 3742 [Sur Ct, NY County]; Matter of Muller, 138 Misc 2d 966 [Sur Ct, Nassau County 1988]). Claims made here of attorney-client privilege do not apply to discovery of documents related to wills in probate contests (CPLR 4503 ([b]). Demand 23, by contrast, which asks for “wills and documents relating to same Wills” is unclear, and the court declines to compel proponent to answer it in its current form. Demands 24 and 30, which seek documents concerning bills and payment records for legal services, are objected to on grounds of vagueness and ambiguity, overbreadth, and attorney-client privilege. The words “bills” and “payment records” are neither vague nor ambiguous, as proponent asserts. As for any arguable overbreadth, proponent’s obligation to provide such documents is limited to legal services with respect to the propounded instrument or other estate planning services performed within the relevant time period. Proponent’s claim of privilege is rejected, based on the probate exception in CPLR 4503 and the absence of a privilege log or any factual showing that such documents would reveal privileged communications. Other demands claimed to be vague and ambiguous. Proponent also objects that demands 18, 19, 21, 28, 29, 32, 33 and 37 are so vague and ambiguous as to render them unintelligible. In each case, the specific words proponent points to as objectionable — words such as “records indicating appointments,” “telephone books,” photographs “bearing Decedent’s likeness,” “employees,” “insurance policies,” and the like — have ordinary, widely understood meanings, rendering these objections completely meritless. These demands must therefore be responded to in full. Other demands. Movants’ request in demand 3 for all documents bearing decedent’s signature is denied as overbroad. Movants’ demand for decedent’s income tax returns in demand 36 is denied as there is no showing that the returns contain information unavailable from other sources which would merit the disclosure of such confidential documents (David Leinoff, Inc. v. 208 West 29th St. Assoc., 243 AD2 418 [1st Dept, 1997]; Matter of Manoogian, supra). Movants’ demand for documents concerning the value of decedent’s estate (demand 38) is granted. Proponent’s assertion of confidentiality is wholly unsupported. Request for sanctions. Finally, movants request that the court impose sanctions on proponent for her failure to provide document discovery. Proponent’s conduct, raising arguments that border on the spurious and failing to provide documents responsive to demands to which she made no objection, falls dangerously close to the realm of sanctionable conduct. However, the court gives proponent an opportunity to show good faith and orders her to make a full and complete response to movants’ document demand and provide all required documents in accord with this decision within 30 days of the date of this decision. If she fails to do so, movants may renew their request for sanctions. This decision constitutes the order of the court. Dated: October 5, 2021
