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Drafting Attorney's Computer Inspected for Evidence in Will Contest

Written by Brian Spiro • October 18th, 2016

Probate Litigation,  

A Surrogate’s Court in Erie County, New York, ordered the drafting attorney of a will to turn over his computer during discovery in a will contest. In the recent decision of Matter of Nunz, 2012-4075/A, 2016 N.Y. Misc. LEXIS 2891, the Surrogate ruled that a “proper basis” existed for the drafting attorney’s computer to be tested in order to help resolve matters of uncertainty concerning the execution of the Decedent’s will.

By way of background, Decedent went to the drafting attorney approximately one month prior to death to have a will prepared. Following preparation of Decedent’s will, all of the documentation related to the will’s preparation was allegedly missing from the drafting attorney’s computer.  The will purported to leave all of Decedent’s estate to his second wife, who was Decedent’s surviving spouse.  Five of Decedent’s six children from Decedent’s earlier marriage contested the will and sought a discovery ruling from the Court to permit a forensic expert the requisite access to reconstruct the drafting attorney’s lost files in order to support their position.

Following an evidentiary hearing on the matter, the Court held that electronically stored information (ESI) was “clearly discoverable” for the Decedent’s children so that they obtain all information “material and necessary in the prosecution [of their] action” relying on NY CPLR 3101(a), which does not expressly mention ESI.

There is a growing trend in the way discovery, particularly e-discovery, is conducted.  This decision is another example of how electronically stored information may work its way into a case or proceeding.  As court's around the country become more familiar with electronic discovery, electronic discovery can be expected in forums where such discovery has not traditionally taken place. 

Brian M. Spiro and the attorneys at Clark Skatoff PA are licensed in several states including New York and handle probate, trust and guardianship litigation.  We handle complex, multi-state probate and trust disputes.  We may be reached at (561) 842-4868 for a free consultation.