Surrogate KellyESTATE OF BERNHARD ECKERT, Deceased (16/3279/A) — In this contested probate proceeding, petitioner Susan Eckert-Barsz (Susan) moves for an order (1) compelling objectants Edward Eckert (Edward) and Robert Eckert (Robert) to produce all documents responsive to her notice for discovery and inspection dated November 29, 2017; (2) extending the discovery period beyond the 3-2 rule provided in 22 NYCRR 207.27; (3) compelling the objectants to comply with her demand for a bill of particulars dated August 28, 2017; and (4) extending the deadlines for the taking of depositions and the completion of discovery. The objectants oppose items (1), (2) and (3) of the motion, and cross move for an order compelling petitioner to produce the estate planning documents of respondent Victoria Eckert (Victoria).1The papers considered on these motions are the Notice of Motion and all the papers annexed; the Memorandum in Support of the motion; the Notice of Cross Motion and all the papers annexed; and the Reply in support of the motion and in opposition to the cross motion. While these motions were sub judice, the parties sent supplemental papers to the court, which were not requested. These post-submission papers have not been considered by the court.The decedent died on July 2, 2015, at the age of 89 years, survived by his spouse and three children. The instrument sought to be probated as the decedent’s will is dated June 3, 2014. It is subscribed by two witnesses and the attorney-draftsperson, and a self proving affidavit is annexed. Except for tangible property, the instrument provides for the remainder of the estate to pour over to a revocable trust which was created the same day as the instrument. The instrument further provides that any reference therein to the terms “my child” or “my children” shall specifically include the decedent’s daughter Susan, but shall not include his sons Robert or Edward “because of their lack of affection.” The instrument also contains an in terrorem clause.The revocable trust provides for the trust property to be paid upon the decedent’s death to his spouse, Victoria. In the event Victoria does not survive the decedent, the trust provides, inter alia, that the decedent’s sons Robert and Edward each receive a 50 percent share of the decedent’s stock and ownership interest in a realty corporation, and a payment of $1,000.00 to each. A grandson is given the decedent’s interest in another corporation, and the balance of the trust property is payable to the decedent’s daughter Susan. If, however, Victoria or the fiduciary of her estate disclaims all or part of the disposition to her, so much of the disposition disclaimed shall be held in trust, with the net income, or so much of the principle as the trustees determine, paid to Victoria. Upon Victoria’s death the “disclaimed” trust property is to be distributed in the manner as if she had predeceased.Robert and Edward interposed objections to the probate of the instrument. The objections include allegations of undue influence and fraud exercised by Susan.On August 28, 2017, petitioner served objectants with a demand for a bill of particulars. A preliminary conference was held with the court on October 30, 2017, at which petitioner and objectants entered into a discovery stipulation setting forth various dates for the production of a bill of particulars, the service of discovery demands, and the taking of party and non-party depositions. Pursuant to the stipulation, objectants served a bill of particulars dated November 10, 2017. Thereafter, petitioner served her discovery notice, to which objectants served a response dated December 23, 2017.Petitioner’s notice for discovery consists of twenty-four pages, five of which include definitions and instructions, and the balance thereof containing 119 individually numbered requests for the production of documents. Of those 119 numbered requests, 116 of them commence with the word “all.” Most of the numbered requests employ the phrase “all documents evidencing, referring or relating to.” Many of the numbered requests seek documents dating back more than thirty years. Some requests are not restricted to any time frame at all.Broadly these demands fall into 24 categories ranging from arguably relevant communications to such picayune items as greeting cards, and from personal records to virtually every document related to the decedent’s purported business interests.Objectants’ response to petitioner’s discovery notice is fifty-four pages in length. In addition to interposing general objections to the entire document demand, objectants provide responses to each individual request. Some of the requests are objected to on the grounds of lack of specificity, vagueness, or irrelevance; others on the grounds that they are over broad, unduly burdensome, meant to harass, or palpably improper. In addition to those grounds, the majority of the requests are objected to as seeking documents outside the scope of the “3-2 rule” provided in the Uniform Rules for Surrogate’s Court (22 NYCRR 207.27). Despite their across the board objections to the requests, the objectants nevertheless indicated that they would endeavor to provide some of the requested documents, at least within the parameters of the “3-2″ rule.CPLR 3101[a] provides that in civil actions there shall be full disclosure of all evidence “material and necessary.” Although the words “material and necessary” are to be liberally construed, the test, nonetheless, is usefulness and reason (Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406). The need for discovery must also be weighed against the burden to the opposing party (Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952, 954). Disclosure demands which are overbroad, burdensome, lack specificity, seek irrelevant information, or are otherwise improper, will be denied to the extent warranted (see Astudillo v. Ft. Francis-Beacon Extended Care Facility, Inc., 12 AD 3d 469, 470; Lopez v. Huntington Autohaus, Ltd., 150 AD 2d 351, 352).In deciding issues related to disclosure, the court has “broad power to regulate discovery to prevent abuse” (Barouh Eaton Allen Corp. v. International Bus. Machs. Corp., 76AD2d 873, 874). Furthermore, the supervision of disclosure and the setting of reasonable terms and conditions rests within the sound discretion of the court and, absent an improvident exercise of that discretion, its determination will not be disturbed (Mattocks v. White Motor Corp., 258 AD2d 628, 629).Given the breadth of the discovery requests, the applicability of the commonly referred to “3-2 rule” found in 22 NYCRR 207.27 is clearly in issue. The rule in relevant part provides:“In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial…Except upon a 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.”Although by its terms the rule relates to examinations before trial, it has been held to apply to all discovery devices (see e.g. Matter of Manoogian, NYLJ Feb. 28, 2014 at 22 col 5 [Sur Ct, New York County]; Estate of Roma, 2006 NY Misc LEXIS 5650 [Sur Ct, Suffolk County]).This time limitation for discovery is a pragmatic rule designed to prevent the costs and burdens of a “runaway inquisition” (Matter of Chin, 55 Misc 3d 1092, citing Estate of Das, NYLJ, May 1, 2009 at 31, col 3 [Sur Ct, Nassau County]). The time period is not rigid and may be extended when “special circumstances” exist (see Matter of Kaufman, 11 AD 2d 759). It is within the discretion of the court whether to expand the scope of discovery (Matter of Duzhansky, 153 AD 3d 819).The usual situations where an extension of the time period has been permitted are based upon the request of an objectant where there are allegations of a scheme of fraud or a continuing course of conduct or undue influence (see Matter of DuBray, 132 AD 2d 914) or there is an in terrorem clause (see Estate of Nigro, 2004 NY Misc LEXIS 3258 [Sur Ct, Nassau County]). The rationale for permitting an extension in these situations is the circumstantial nature of the evidence usually involved in a scheme of fraud or undue influence, and also to permit a beneficiary to obtain sufficient information before making a decision to risk triggering an in terrorem clause (see e.g. Matter of Marshall, 11 Misc 3d 674).Here it is not an objectant to the instrument who is seeking an extension of the time period, but the proponent of the instrument. Petitioner claims that there had been a long contemptuous history between the decedent and his son Edward arising out of their business dealings as well as several lawsuits Edward pursued against the decedent. Petitioner contends that the objectants are seeking to prove their undue influence objection by hiding, through the use of the rule, years of animosity that the decedent had for the objectants. Petitioner asserts that the correspondence, documents and business records she seeks beyond the “3-2″ period are material and necessary to her defense against the objections as they will show the decedent’s motivation for leaving his assets to his spouse and prove the objections to be patently frivolous.The court finds that these assertions put forth by petitioner are insufficient to establish special circumstances warranting the extensive scope of disclosure she seeks well beyond the normal three year period from the date of execution of the instrument.Although some of the items sought in petitioner’s discovery notice may be relevant, a great many of the requests lack specificity, are patently unreasonable in scope, and unnecessarily burdensome. With respect to petitioner’s requests for corporate documents, it is not just the large quantity of documents requested that is of issue, but the relevancy of those documents to a probate contest. Many of the extensive documents broadly demanded by petitioner with respect to the business entities appear only remotely related, if at all, to the validity of the decedent’s will, and petitioner, as a fiduciary, is entitled to those business records to which the decedent himself would have been entitled to receive from these entities.In any event, for the purposes of this probate proceeding, the requests are overly broad and burdensome. Even where some of the requests may be relevant, it is not the duty of the court to prune the requests (see Latture v. Smith, 304 AD 2d 534, 536). The party seeking disclosure has the burden of making a proper demand. It is not for the court to correct a palpably bad one (see Matter of New York Cent. Mut. Fire Ins. Co. v. Librizzi, 106 AD 3d 921). A motion to compel discovery is properly denied where the demand seeks irrelevant information, or it otherwise lacks specificity or is overly broad or burdensome (Merkos L’Inyonei Chinuch, Inc. v. Sharf, 59 AD 3d 408; Gilman & Ciocia, Inc. v. Walsh, 45 AD 3d 531).Notwithstanding the above, as to document requests numbered 1-6, 14-21, 24-33, 36-41, which the objectants responded they would undertake to identify and produce, the motion is granted and the objectants shall produce such documents in their possession, custody or control responsive to those requests limited to within the time frame of the “3-2″ rule, or otherwise submit an affidavit of due diligence. As to the remaining discovery requests, the motion to compel is denied.With respect to the branch of petitioner’s motion seeking to compel the objectants to comply with her demand for a bill of particulars dated August 28, 2017, petitioner claims that respondents should provide full particulars with respect to her demands numbered 5, 6 and 7. These demands relate to the objections to probate with respect to the claimed failure to follow statutory formalities, the lack of due execution and the incompetency of decedent to make a will. In response to these demands, objectants served a bill of particulars providing a response to each of those demands wherein they objected to the demand on the ground that petitioner had the burden of proof on those issues, and because they sought disclosure of facts for which discovery was required.In a contested probate proceeding, the Uniform Rules for Surrogate’s Court provide that when the objections to probate are made upon the grounds of fraud or undue influence, or if it is claimed by the contestant that the propounded instrument is not the last will of the decedent, the proponent is entitled to a bill of particulars setting forth specific and particular information as to those claims as set forth in the rule (see 22 NYCRR §207.23 [a], [b]). Thus, to the extent the objections in this proceeding set forth claims of undue influence and fraud, petitioner appropriately sought particulars concerning those issues.A proponent, however, is not entitled to a bill of particulars with respect to issues that the proponent has the burden of proving (see Matter of Po Jun Chin, 55 Misc 3d 1092; Matter of Cascardo, NYLJ, Aug. 28, 2009 at 34, col 1 [Sur Ct, Richmond County]). Items numbered 5,6 and 7 of petitioner’s demand seek particulars pertaining to the objections as to due execution and testamentary capacity, issues upon which petitioner has the burden of proof. Since petitioner bears the burden of proof on these issues, the objectants were not required to provide particulars as to those items.Accordingly, the objectants need not render particulars beyond those which they have already provided as to Item Nos. 5, 6 and 7, and the branch of proponent’s motion to compel them to do so is denied.Turning to the cross motion, objectants seek to compel petitioner to produce the estate planning documents of respondent Victoria Eckert.Objectants contend that the estate plans of the decedent and his wife Victoria were created at the same time and are part of the same overall estate scheme influenced by the petitioner. They seek not only Victoria’s will and trust instrument, but also the documents maintained by the attorney-draftsperson concerning the planning and preparation of such instruments, including notes, correspondence, emails, telephone logs, diary entries, journals, calendars, memoranda, drafts, time entries and invoices. It is asserted that these documents are critical to determining whether the attorney-draftsperson was oblivious to Victoria’s alleged lack of testamentary capacity at that time and, consequently, the decedent’s potential incapacity and the petitioner’s exertion of undue influence.Petitioner objects to the production of Victoria’s estate planning documents, as did the guardian ad litem. Petitioner argues that the law prohibits the production of a testamentary instrument of a person who is not deceased.Contrary to petitioner’s contentions, the law does not absolutely prohibit the production of a living person’s testamentary instrument. Neither Victoria’s will nor her trust instrument necessarily fall under the protection of the attorney-client privilege (see e.g. Matter of MacLeman, 9 Misc 3d 1119[A]; Matter of Freilich, 179 Misc 2d 884).As to the underlying documentation, communications between an attorney and a living client relating to the preparation, contents and execution of a testamentary instrument that were not made in the presence of a stranger, nor made with the intent that the attorney communicate its contents to someone else are privileged (Matter of Johnson, 127 Misc 2d 1048). If two persons consult an attorney for their mutual benefit and are present during these discussions, the privilege is not waived in any litigation between either of them and third parties (Estate of Nigro, 2004 NY Misc LEXIS 3258, *12 [Sur Ct, Nassau County]). But it has been held, because neither person intended what was discussed to be kept confidential from the other, the privilege may not be invoked in any litigation that may arise between them or their descendants (see Matter of Swantee, 90 Misc 2d 519, 522; see also In re Othmer, 1996 NYLJ LEXIS 4873, *3; Matter of Newton, 62 Misc 2d 553, 554).Clearly the matter at hand does not involve litigation between the decedent and his spouse. Nor are the litigants in this proceeding representatives of the decedent’s estate and his surviving spouse. Rather, this contest is predicated on objections filed by third parties, the decedent’s sons, with their sister putatively representing the decedent’s interests. Within the context of this factual circumstance, the court finds the privilege should apply.Furthermore, even if Victoria’s estate planning documents were not protected by the attorney-client privilege, the court nonetheless is keenly aware of the privacy concerns attendant to those documents. Their disclosure should not be compelled absent a strong showing of necessity. The court finds, based upon the arguments set forth, that the objectants have not made the requisite showing to warrant their production. As Victoria did not predecease the decedent, the situation at bar involves an estate where a husband is leaving his estate to his wife. It may be, as alleged, that the decedent’s daughter will benefit to a higher degree than her siblings upon their mother’s demise. Yet, all these issues can be addressed at the time such an eventuality unfolds. The objectants are still free to inquire as to this decedent’s capacity and why he made the decision to distribute his estate in the manner set forth without the need to also inquire as to why his spouse determined to distribute her estate in the manner she chose.Accordingly, the cross-motion is denied.Finally, with respect to the branch of petitioner’s motion to extend the deadlines for the taking of depositions and the completion of discovery, the objectants are directed to comply with the outstanding discovery requests to the extent set forth herein within twenty days of the date of this decision and order. All further discovery shall be completed within 60 days of the date hereof. A pre-trial conference shall be held on September 25, 2018 at 9:30 A.M.Accordingly, the motion is granted in part and denied in part as set forth above. The cross motion is denied in all respects.This is the decision and order of the court.The clerk of the court shall email a copy of this decision and order to all parties who have appeared in this proceeding.Dated: July 5, 2018
