The opinion
Smith, J. (dissenting).
I agree that the evidence here does not prove undue influence was exercised. It is quite possible that decedent’s brother did not do anything wrong. But there is some reason to suspect he did, and if he did petitioner will have, effectively, been cheated out of a legacy without any opportunity to prove the wrongdoing. I think this is unfair. Thus, while this record does not justify vacating the probate decree, petitioner should be given a chance, through discovery, to obtain evidence that would justify it.
Incomplete as the present record is, three troubling facts emerge: First, decedent’s estate plan, beginning more than 20 *99 years before her death, included a large bequest to petitioner. Secondly, decedent changed her will in her last illness, five days before her death, to leave nothing to petitioner and the bulk of the estate to her brother’s daughter. Thirdly, at the time of the change decedent was being cared for in her brother’s home.
Of course, these facts could have a perfectly innocent explanation, but that leads me to a fourth troubling aspect of the case: Decedent’s brother (now deceased) and his daughter, the executor and successor executor under the will, have chosen to volunteer no information whatever. It is true, of course, that they had no obligation to speak, but in my experience litigants are rarely so reticent when the facts they know would help their case. I do not suggest that their silence justifies an adverse inference, in the sense that it would in itself support vacating the probate decree. But I think the Surrogate abused her discretion in not requiring them to tell their story before deciding whether to vacate the decree or not.
If petitioner had been entitled to notice of the probate proceedings, it could have had discovery as a matter of right before deciding whether to challenge the will (SCPA 1404 [4]). Since it was not entitled to and did not get notice, it could not seek any relief until after the decree was entered. The Attorney General, appearing here as intervenor as part of his duty to protect charitable beneficiaries, argues that in circumstances like these, where there are some signs of undue influence, a disinherited charity should have the same discovery rights that section 1404 (4) would have given prior to probate. I agree. Judging from the cases cited by the parties, either discovery or an evidentiary hearing has been the normal practice in similar situations (see Estate of Greene, NYLJ, May 22, 1996, at 29, col 6 [Sur Ct], affd 240 AD2d 745 [2d Dept 1997]; Estate of Sokol, NYLJ, Jan. 9, 1995, at 31, col 3 [Sur Ct]; Matter of Abrial, 286 App Div 916 [3d Dept 1955]; Matter of Callahan, 273 App Div 884 [1st Dept 1948]). I see no valid reason for denying discovery here.
Chief Judge Kaye and Judges Graffeo, Read, Pigott and Jones concur with Judge Ciparick; Judge Smith dissents in a separate opinion.
Order affirmed, with costs.