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In re Chin

Surrogates Court, Queens County

March 27, 2017

Matter of Po Jun Chin, Deceased.

          Attorney for Petitioners: Barry K. Honigman, Esq.

          Attorney for Objectant: Damianos Markou, Esq. Moritt, Hock & Hamroff LLP.

          Peter J. Kelly, S. Judge.

         In this probate proceeding, objectant moves for an order striking that part of petitioners' demand for a bill of particulars which seeks particulars on the issues of due execution and testamentary capacity, expanding the scope of discovery beyond the time period set forth in the Uniform Rules for the Surrogate's Court (22 NYCRR § 207.27), directing petitioners to provide a response to objectant's discovery demands, and for sanctions and attorney's fees.

         Decedent died on January 23, 2016 survived by three children, the petitioners Theodore and Philip, and the objectant Patricia. Offered for probate is an instrument dated April 10, 2003 wherein decedent bequeaths her interest in a certain corporation to her three children equally and leaves the residuary estate only to petitioners.

         Objections were filed after SCPA § 1404 examinations of the attorney draftsperson and one witness. Although examinations before trial of the parties were scheduled at the preliminary conference, they have not been conducted since objectant claims she has not received certain financial records and signed HIPPA authorizations from petitioners. Likewise, petitioners claim that objectant has failed to provide a response to their demand for a verified bill of particulars.

         In probate proceedings, demands for bills of particulars and responses are governed by CPLR § 3041 and § 3042, as well as the Uniform Rules for Surrogate's Courts, 22 NYCRR § 207.23. The latter section provides that when objections to probate are made on the grounds of fraud or undue influence, the proponent is entitled to a verified bill of particulars setting forth particular, itemized information. A proponent, however, may not demand a bill of particulars with respect to issues that it has the burden of proof on, namely due execution and testamentary capacity (see e.g. Estate of Cascardo, NYLJ, Aug. 28, 2009 at 34, col 1 [Sur Ct, Richmond County]). In this case, petitioners have erroneously demanded a bill of particulars concerning the issues of due execution and testamentary capacity.

         Accordingly, the branch of the motion to strike that part of petitioners' demand seeking a bill of particulars on the issues of due execution and testamentary capacity is granted.

         However, petitioners also appropriately seek particulars concerning the issues of undue influence and fraud. Objectant argues that, to the extent a bill of particulars is required on these issues, it need not be provided until after the depositions of the parties and the completion of discovery, citing Matter of Reynolds, 38 A.D.2d 788');">38 A.D.2d 788 [4th Dept. 1972]), a probate proceeding which held that a showing of special circumstances must be made to obtain a bill of particulars prior to completion of examinations before trial. That case, however, predates the effective date of 22 NYCRR § 207.23 [ eff. January 6, 1986] which expressly provides that "the proponent shall be entitled as of course" to the bill of particulars. Should further information be obtained, objectant may amend the bill of particulars "once as of course prior to the filing of a note of issue" (CPLR § 3042 [b]).

         Accordingly, objectant is directed to provide petitioners with a verified bill of particulars setting forth the information required by 22 NYCRR § 207.23 concerning the allegations of fraud and undue influence within her knowledge, within twenty (20) days from the date of this decision and order.

         Objectant next seeks to expand discovery in this case beyond the time period set forth in the applicable Uniform Rules for the Surrogate's Court, which confines discovery to the three year period prior to the date of the propounded instrument and two years thereafter (or date of death if earlier), except upon a showing of special circumstances (22 NYCRR § 207.27; see Estate of Armen Manoogian, NYLJ, Feb. 28, 2014 at 22, col 5 [Sur Ct, New York County]; Estate of Giardina, NYLJ, June 15, 1999 at 32, col 4 [Sur Ct, Nassau County]). This limitation of the time period for which discovery can be obtained is a pragmatic rule designed to prevent the costs and burdens of a "runaway inquisition" (Estate of Das, 2009 NY Misc. LEXIS 2411 [Sur Ct, Nassau County]). The determination whether to expand the scope of discovery is within the discretion of the court (see e.g. Matter of Constant, 128 A.D.3d 419');">128 A.D.3d 419 [1st Dept. 2015]).

         Objectant argues that special circumstances exist because the proponents have engaged in a scheme of fraudulent conduct and continuing course of undue influence. When special circumstances are based upon this allegation they must be evidenced by the facts (see Matter of Partridge, 141 Misc.2d 159 [Sur Ct, Rockland County 1988] ; Estate of Sabin, 2015 NYLJ Lexis 5846 [Sur Ct, Suffolk County]; Estate of Levey, 2015 NYLJ LEXIS 5845 [Sur Ct, Suffolk County]).

         In support, the objectant submits a letter from decedent's treating doctor stating that decedent was diagnosed with dementia on October 19, 2000. Prior thereto, decedent had created an irrevocable trust in or about December, 1999 which granted all three of her children an equal interest in the trust income and residuary. Decedent thereafter gave both proponents a power of attorney in 2006 that they allegedly used to transfer $250, 000.00 to themselves prior to decedent's death in 2016. In addition, the documentary evidence shows that decedent executed a deed transferring a parcel of real property to the proponents in May, 2000, which is near in time to both the establishment of the trust and the diagnosis of dementia.

         The facts and circumstances surrounding the transactions between decedent and the petitioners that occurred both before and after the purported will was executed demonstrate a change in decedent's 1999 testamentary plan, and arguably, a potential course of conduct which could bear on the question whether undue influence existed (see generally e.g. Matter of Carpenter, 252 AD 885 [2nd Dept. 1931; Will of Griffith, 48 Misc.2d 1048, 1049 [Sur Ct, Erie County 1966]). ...


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