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When to send a discovery request to opposing party in a California probate case?
Anonymous4 views2 answers
I am a relative and beneficiary of a Decedent's will. Shortly before Decedent passed away title and beneficiary information for most of his valuable assets was changed under questionable circumstances for the benefit of a third party. Assets passed to the third party as joint tenant or beneficiary. I filed a Probate code 850 petition and claimed that the assets belong to the estate because the transfers were made under undue influence by that third party. I presented all of the information available to me, but bank documents and statements from the third party would certainly be helpful to prove my case. When do I send discovery requests to the third party and the banks involved? The hearing regarding the 850 petition is coming up soon and I do not feel prepared.
Generally, 20 days after service of the summons or appearance of any defendant. A plaintiff requires court approval to serve a deposition notice before 20 days have elapsed after service of the summons or appearance of any defendant. CCP §2025.210(b).
All forms of discovery in civil proceedings under CCP §§2016.010-2036.050 are made available in a contested probate proceeding by Prob C §1000. The legislature has expressly made the discovery laws applicable to probate matters.
Note that although all discovery devices are available against a party, only deposition subpoenas can be directed to a nonparty. CCP §2020.010(b). In addition to oral and written depositions, a party may require a nonparty witness to produce business records, other documents, and things only through service of a deposition subpoena. CCP §§2020.010, 2020.410-2020.510. No authority exists for subjecting nonparty witnesses to any other discovery method.
Finally, Cal. Prob. C §852 authorizes an interested person to request additional time for discovery and preparation for trial and directs the judge to grant a reasonable continuance for those purposes. Note however, if extensive discovery is required, there is a great risk that the judge before whom the §850 petition is pending will decide that the matter is best determined by a civil trial (Prob C §856.5).
You could probably serve your Petition to the third party, then you can institute and utilize the subpoena powers of the court to subpoena any records you feel are necessary to prove your case. If you feel time pressure, you should continue the Probate Code 850 petition. There is a very recent California Court of Appeals Decision which also enables you to file a civil action for an intentional disinheritance by a third party by and through their wrongful actions. I don't know what dollar amount is involved, but if it is significant you certainly want to retain competent legal counsel to aggressively represent you in this matter. If you attempt to do it in pro per, this could be a most difficult task.
