Surrogate Grants Standing to Conduct SCPA 1404 Discovery to Temporary Administrator

In Matter of Astor, __ Misc.3d __, _ N.Y.S.2d __, 2008 NY Slip Op 28317 (Sur. Ct. Westchester Co. 2008), Surrogate Scarpino held that the corporate temporary administrator of the estate, which was not named as a fiduciary in any prior instrument, could nonetheless participate in SCPA 1404 discovery. The Court held because of the rather unique facts of the case – the executors named in prior wills had renounced their nominations – the bank had demonstrated good cause to conduct the discovery. Among the reasons cited by the Court were the serous allegations of lack of due execution, lack of capacity and undue influence, and the radical change in testamentary given the decedent’s strong charitable intent reflected in prior wills.

Another interesting issue presented was whether the decedents son, who was then under indictment for alleged crimes relating to decedent’s finances and estate plan was required to produce documents in discovery in the face of is assertion of his Fifth Amendment privilege against self-incrimination. The claim was not only that the documents sought were testimonial in nature, but that the very act of production could be incriminating. The Surrogate directed that he would review, in camera, all documents over which a privilege was asserted.