Legal cases require many important steps. These steps include filing the original petition, making sure the parties are properly served, and attending any temporary hearings, just to name a few. One step that is included in many civil cases is discovery. During discovery, each side can obtain information and documents from the other side using a variety of instruments, such as Interrogatories, Requests for Production, or depositions. Like other civil cases, probate will sometimes require that discovery be completed.
Parties to a probate case should remember that it is not necessary that discovery be completed in every case. During informal probate or cases where nothing is contested, discovery may not be required. The aim of discovery is to make sure both sides in a dispute have all the relevant information. If there is no dispute, then there is likely no reason to complete discovery.
One reason discovery may be required in probate is when there is a dispute over whether a particular heir should be a beneficiary of the estate. If a potential heir files a dispute to the proposed distribution of the estate, then discovery may need to be completed in order for the personal representative of the estate and the potential beneficiary to exchange information about why the beneficiary is or is not eligible to inherit a part of the estate.
Another reason discovery may be required in a probate case is where the opinion of an expert witness is required. When a challenge is brought to a will or trust because there is an allegation that the testator or the person who created the trust did not have the capacity to do so. Lack of capacity relates to a testator’s ability to understand the consequences of his or her actions, as would often be the issue where a testator has dementia or a similar mental incapacity. In these cases, the person bringing the challenge will need to produce evidence of the lack of capacity, often in the case of an expert witness, such as a medical provider. During discovery, the parties may conduct depositions of the expert witness to get a firm understanding of the expert’s opinions and the bases for those opinions.
Finally, discovery may also be used for issues as simple as producing financial documents, like bank statements. When there is a contest to the distribution of the assets in the estate, the person bringing the challenge may issue a request for production of documents to force the personal representative of the estate to provide copies of all the estate’s bank and financial statements.