In contested probate matters before the New York Surrogate’s Court, the single most consequential procedural step is one that occurs before a formal objection is filed. SCPA 1404 permits a person with a potential objection to a Will to examine the attesting witnesses, the drafting attorney, and the nominated executor before deciding whether to object. The examination is not a formality. It determines whether the will contest proceeds, settles, or ends.
What the examination accomplishes
The attesting witnesses are examined about the execution — whether the formalities of EPTL 3-2.1 were observed, whether the testator declared the instrument to be a Will, whether the witnesses signed in the testator’s presence and at the testator’s request. The drafting attorney is examined about the circumstances of preparation — who requested the plan, who gave instructions, what the testator understood, whether the testator was influenced by third parties. The nominated executor is examined about the testator’s state of mind, financial affairs, and family circumstances in the period before execution.
Done thoroughly, SCPA 1404 produces a sworn record that establishes whether a viable objection exists on grounds of lack of due execution, lack of testamentary capacity, undue influence, or fraud. The record is created before the objectant commits to the procedural and financial burdens of a formal objection — and before the proponent’s narrative hardens.
Why the step is skipped
The examination is skipped most often because the potential objectant hires counsel too late. The deadline to appear and demand a 1404 examination is tied to the probate petition’s return date. Objectants who first consult counsel after the preliminary conference has occurred frequently discover that their best procedural window has closed.
It is also skipped when counsel treats the examination as a cursory formality rather than a focused investigation. The attorney who conducts a 1404 examination needs to know, before the examination begins, what the issues are — what the testator’s medical records show, what the prior wills contained, what the family dynamics looked like in the months before execution, what financial changes occurred. Without that preparation, the examination produces nothing usable.
What follows
When the SCPA 1404 record demonstrates a viable objection, the objectant files formal objections and the matter proceeds to the discovery phase of a contested probate. When the record demonstrates no viable objection, the matter resolves without the expense of contested litigation. Either outcome is better than one that occurs after a formal objection has been filed in error, or after a legitimate challenge has been foreclosed by failure to act in the examination window.
The 1404 examination is where contested probate is actually tried. The rest of the proceeding frequently follows the record built in the examination.
—
Michel Law represents proponents, objectants, and estate fiduciaries in contested probate and estate administration matters before the New York Surrogate’s Courts. Submit a confidential inquiry to discuss a matter.