Surrogate's Court, Orange County, August 4, 2020

Lowenstein Sandler, LLP (Jeffrey J. Wild and Warren K. Racusin of counsel) for petitioners.

By verified petition, verified on July 29, 2020, petitioners Mary Louise Baird Cardelli and Elizabeth C. Cardelli petition the court pursuant to SCPA 1404, SCPA article 21 and/or CPLR article 31 for a decree (1) authorizing pre-objection examinations of the attesting witnesses and preparer(s) of an alleged will and trust, (2) authorizing petitioners to engage in document discovery concerning the alleged will and a trust and (3) ruling that the discovery activities described in the verified petition are authorized and will not violate either of the no-contest clauses in the alleged will or trust. Said verified petition was filed and the associated fee was paid as of July 31, 2020.

With regard to the above-captioned estate, a small estate administration proceeding has been filed pursuant to SCPA article 13 by W. Robert Baird, Allen P. Baird and Charles A. Baird. No party has sought to probate any alleged will of the deceased and no such probate proceeding is pending. The petitioners admit these facts in their verified petition.

Specifically, the petitioners allege that there are, potentially, millions of dollars in estate assets that should have been or could have been assets of the estate, but for certain transfers of such assets made by the decedent before his death into the alleged trust.

The purpose of the discovery is understood; however, the proceeding is defective and the court declines to entertain it for the following reasons.

While pre-objection SCPA 1404 examinations/discovery is available without necessarily triggering a no-contest clause, the right to such pre-objection examinations/discovery requires the actual pendency of a probate proceeding in the first instance. The language of SCPA 1404, itself, presupposes that there has been a "will offered for probate" and that "probate proceedings" have been filed and are pending. (See SCPA 1404 [2], [4], [5] [a] [1]; see e.g. Matter of Elyachar, 48 Misc 3d 852, 857 [Sur Ct, Westchester County 2015] ["Discovery pursuant to SCPA 1404 is limited to matters that may provide a basis for objections to probate of the propounded instrument"].) Thus, the purpose of pre-objection discovery under [*2]SCPA 1404 is to permit parties to a probate proceeding to determine the propriety of filing objections to the instrument offered for probate. (Matter of O'Melia, 213 App Div 387 [1st Dept 1925].){**69 Misc 3d at 385}

In comparison, any discovery activity pertaining to matters beyond the potential objections to the propounded will is premature until after objections have been filed. (Matter of Kimmerle, 130 Misc 767, 768 [Sur Ct, Bronx County 1927] [holding that discovery seeking information beyond the objections to a will is not premature where a "probate proceeding is actually pending and objections have been filed"].)

Since the verified petition here seeks pre-objection examinations/discovery pursuant to SCPA 1404 without a will having been offered for probate, the court exercises its discretion pursuant to SCPA 2101 (1) (b) and declines to entertain this proceeding.

Accordingly, the above-captioned proceeding is hereby dismissed, without prejudice.