Filing an SCPA Section 1404 Deposition are taken when people who are not satisfied with a will examine witnesses to the will under oath, to check for issues ranging from the competence of the testator when the will was written, to speculation about if the will was actually written before the death of the testator.
Transcript costs for the deposition must be paid. It is important to understand the legal rights and responsibilities when it comes to this financial obligation. There are potentially different scenarios that decide whether the estate, or objectant, pays for the transcript costs.
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Overview of the SCPA Section 1404
The New York Code of Section 1404 allows for witnesses to be examined regarding matters related to a testator’s will.
Section 1404 deals with the examination of the witnesses and attorney draftsmen pertaining to the facts and circumstances that have surrounded the execution of the will. The examination can offer the opportunity to answer questions about the demeanor and competence of the testator.
The article states that at least two attesting witnesses must be appointed to go before the court and be examined before the official will can be admitted into probate. In addition, the witnesses must have the ability to competently and coherently testify in a courtroom.
The will can be eligible to take to probate if the following are questionable:
• proof of provisions
• the will’s existence at the time of death
• the will’s due execution
The information gathered in the SCPA 1404 exam can be helpful in determining irregularities in the construction of the will, and if it will need to be defended in a court of law.
The scenario of when the estate pays for transcript costs
If the examination deposition is conducted before the objections are filed, the testator’s estate must pay the costs for the initial commission of the examination for the first two state-residing witnesses. These two witnesses must be competent, able to testify and appointed by the proponent. The stenographer along with a copy of the produced transcripts from the examination process will be included in the cost.
The scenario of when the objectant pays for all transcript costs
According to the New York law, if the deposition examination is conducted after objections are filed, the objector must pay for any transcript fees. This is according to article 31 of the civil practice law and rules.
Performing an SCPA Section 1404 Deposition may be necessary if doubts arise from the testator and the will. It is more important to thoroughly examine the witnesses, and execute the proper objections if sufficient reasons are discovered to object to the will. But it also important to understand who will be footing the bill for the deposition transcript costs.
If you would like to speak with a New York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.