In the pre-objection stage of the probate proceeding in the estate of Donna C. Smidt, decedent’s son Clark (“movant”) brings a motion for an order expanding the time period for discovery beyond the time permitted under Rule 207.27 of the Uniform Rules for Surrogate’s Court (22 NYCRR 207.27) (the “3-2 Rule”). The proponent, decedent’s son Bart, opposes the motion. For the reasons stated herein, the motion is denied. Decedent died on August 17, 2018, at the age of 95, survived by her two sons. Bart offered for probate an instrument, dated November 14, 2011, which leaves decedent’s entire estate to him, to the exclusion of movant. The parties are now conducting pre-objection discovery (SCPA §1404). Movant seeks to expand the time frame for his discovery demands to include the time period starting on January 1, 2001, through August 17, 2018. Such period encompasses, inter alia, decedent’s execution of an inter vivos trust agreement for her lifetime benefit, dated November 9, 2001 (ten years before the will’s execution), in which movant was named as a remainder beneficiary of Connecticut real property, and an amendment of such trust, dated November 1, 2017 (six years after the will’s execution), in which movant was removed as such beneficiary. The 3-2 Rule provides that “[e]xcept upon the showing of special circumstances, the examination will be confined 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). While the statute refers to examinations before trial, caselaw has extended the 3-2 Rule to include all types of discovery (Matter of Partridge, 141 Misc 2d 159 [Sur Ct, Rockland County 1988]). The determination whether to expand the scope of discovery is within the discretion of the court (Matter of Constant, 128 AD3d 419 [1st Dept 2015]; Matter of Duzhansky, 153 AD 3d 819 [2d Dept 2017]). The purpose of the 3-2 Rule is to prevent the costs and burdens of a “runaway inquisition” (Estate of Das, NYLJ, May 1, 2009, at 31, col 3 [Sur Ct, Nassau County]). Courts have expanded the 3-2 Rule where sufficient facts have been alleged to prove an ongoing scheme of fraud or undue influence upon the decedent (Matter of Chin, 55 Misc 3d 1092 [Sur Ct, Queens County 2017]; Matter of Liebowitz, NYLJ, Feb. 29. 2016 [Sur Ct, New York County]) or where an in terrorem clause is present in the will (Matter of Nigro, NYLJ, Oct. 5, 2004, at 17, col 1 [Sur Ct, Nassau County]). In addition, courts have held that prior testamentary instruments fall outside the limitations of Rule 207.27 (See Matter of Llewellyn, NYLJ, Dec. 23, 2014 [Sur Ct, NY County]; Matter of Manoogian, NYLJ, Feb. 28, 2014 [Sur Ct, NY County] [court allowed production of prior testamentary instruments but did not allow examinations as to such since special circumstances were not alleged). When special circumstances are based upon the allegation of undue influence or fraud, they must be evidenced by facts (Matter of Chin, supra; Partridge, supra). Movant argues that the will is the product of undue influence exercised by Bart, who lived with decedent and was her primary caregiver for the time period at issue. He alleges that Bart restricted decedent’s access to visitors, including himself. Movant’s supporting papers include, inter alia, copies of emails between himself and Bart (depicting an acrimonious relationship between the brothers), copies of financial accounts held jointly by decedent and Bart, copies of deeds evidencing decedent’s transfer of trust property to Bart in 2003 and 2004, and copies of the 2001 trust agreement and the 2017 trust amendment. In addition, movant argues that discovery of the circumstances surrounding the trust’s execution is necessary to explain discrepancies in decedent’s estate plan (e.g., in the will provision disinheriting movant, decedent states that she made “other financial provisions” for movant during her lifetime, while the trust amendment, executed 6 years after the will, removed movant as a trust beneficiary. A review of the record fails to show an ongoing pattern of undue influence that would warrant extending discovery to periods so far removed from the will’s execution. Accordingly, the court finds that movant has failed to establish “special circumstances” warranting the scope of disclosure beyond the time period set forth in Rule 207.27. This constitutes the decision and order of the court. Dated: December 30, 2022
