Compelling the Production of a Decedent's Last Will and Testament
When Sam dies, you find a copy of his Last Will and Testament (“Will”) amongst his possessions. The Will was drafted by an attorney. You call the attorney and the nominated executor and both tell you that they are not providing you with any information. How do you get that Will?
Who may Petition to Compel The Production of the Will?Pursuant to SCPA 1401, the following persons may compel the production of the Will:
any person who receives under the Will, or is a fiduciary, or guardian of a person who receives under the Will.
any person entitled to letters of Administration, cta.
the public administrator
a party to an action to brought or to be brought.
How do you Compel the Production of the Will?The proceeding is commenced with the filing of a Petition, and Order to Attend and be Examined, and the payment of a Filing fee of $20.
The Contents of the Petition:
The Petition should state:
The relationship of the individual to the Decedent
The authority of the individual to commence the Petition.
The information that the individual has to as who has the Will, or, who may have destroyed the Will.
The attempts that the individual undertook to have the person(s) file the Will with the Court. (Prior to filing the Petition, it may be a good idea to send a letter to the person(s) believed to be in possession of the Will. The letter should ask that the person(s) file the Will with the Court. This letter should set a date by which the Will should be put on file. This letter should then be attached as an Exhibit to the the Petition.)
All interested parties to the proceeding
A request that the person(s) in possession of the Will pay attorney fees for the bringing of this petition.
A request that the person(s) be ordered to file the Will with the Court at the conclusion of any examination which demonstrates they have the Will in their possession.
The Order to Attend
Instead of a Citation, you are preparing an Order to Attend - an Order that sets forth the date that the person believed to be in possession of the Will should appear in Court and be directed to give testimony as to the whereabouts of the Will. You should prepare the proposed Order for the Court to sign.
Filing the PetitionGo to the Court that has jurisdiction over your decedent. That is, go to the Court in the county where the Decedent died. Submit your Petition, your Order to attend and pay the filing fee. The Court will review the documents to make sure that all is in proper form. If all is in proper form, the Court will then contact you with a signed Order.
You must serve the signed Order, along with the Petition, upon the *respondent* or person that you want to examine. The Order will direct the manner of service. if the person resides in New York, service will be personal service. If the person resides outside of New York, then service may be done by certified mail, return receipt requested. The Order will set forth the deadline by which service must be completed. You should file your affidavit of service that you served the party at least two days before the return date of the Order so that the Court can review its file to make sure that jurisdiction is complete.
The Return DateTypically, on the return date, the person who was Ordered to appear has to appear and the examination can take place in the Court house after the Calendar call.
If that person indicates, on the record, before the Court reporter, that they are in possession of the Will, then they will be Ordered to place that Will on file with the Court immediately.