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Court Discusses Case Involving In Terrorem Clause


A New York Probate Lawyer said a petition for the probate of an instrument dated 11 March 2008 was filed by the nominated executor before the court along with the recovery of property alleged to be an asset of the estate pursuant to SCPA 2103.

A New York Will Lawyer said the parties are: petitioner, the nominated executor; and, respondents, the children of decedent and children of a predeceased son.

The respondents seek: a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and, an order granting petitioner the right to depose the nominated successor executor and attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

New York City Probate Lawyers said that according to petitioners, respondents are attempting to circumvent the in terrorem clause by obtaining a court order directing discovery; the in terrorem clause violates public policy; an issue as to whether a provision of a last will and testament violates public policy must be resolved by construction of the instrument to determine the testator’s intent and the effect of the provisions on the persons to be influenced; however, the court has no authority to construe a will before its admission to probate, thus, that branch of the motion must be denied.

A Westchester County Probate Lawyers said in Matter of Ellis [2d Dept.1998], lv. denied [1999], though valid and enforceable, in terrorem clauses are not favored by the courts and will be strictly construed. As provided for by EPTL 3-3.5(b)(3)(D), the preliminary examination under SCPA 1404 of the attesting witnesses, the person who drafted the will, the nominated executors and the proponents in a probate proceeding will not result in the forfeiture of any benefit under the will. Neither the nominated successor executor nor the drafter of a prior instrument of the testator are among those within this so-called statutory “safe harbor” of persons who may be deposed without fear of triggering an in terrorem clause.

However, Suffolk County Probate Lawyers said in Matter of Singer [2009], reargument denied [2010], the Court of Appeals held that the “safe harbor” provisions of SCPA 1404 and EPTL 3-3.5 “are not exhaustive” opening the door to permit any number of depositions outside the confines of SCPA 1404 and EPTL 3-3.5, which would previously have been considered violative of an in terrorem clause.

In Matter of Singer, the decedent’s will and lifetime trust substantially favored the decedent’s daughter over the decedent’s son. The will contained two in terrorem clauses, one aimed specifically at the son, and the other at any beneficiary. Under the second of the two clauses, it states that: “If any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the probate of or validity of this Will or the revocable trust agreement created by me, or any part of my estate plan or any gifts made by me, or any of the provisions of this Will or of the revocable trust agreement created by me, in any court or commence or prosecute any legal proceeding of any kind in any court to set aside this Will or the revocable trust agreement created by me or any part of my estate plan or any gifts made by me, then in that event, such beneficiary, and all of such beneficiary’s issue, shall forfeit and cease to have any right or interest whatsoever under this Will or under the revocable trust agreement created by me, or in any portion of my estate, and, in such event, I hereby direct that my estate and the trust estate under such revocable trust agreement shall be disposed of in all respects as if such beneficiary had predeceased me without issue.” Without ever filing objections, the decedent’s son noticed for deposition an attorney who had drafted several prior wills for the decedent but not the one offered for probate. Despite an admonition from the daughter/proponent’s attorney that conducting such a deposition could result in the forfeiture of the son’s bequest, he insisted the deposition go forward. After learning at the deposition that the decedent’s immediate prior will also contained an in terrorem clause, he indicated that he would make no objection as to the will’s admission to probate. After the will was admitted to probate, the daughter brought a construction proceeding for a determination of whether her brother’s conduct violated the in terrorem clause, thus resulting in forfeiture. At that time, it was noted by the Surrogate that an attorney who prepared a prior will of the decedent is not identified in SCPA 1404 as a person whose deposition may be taken without fear of triggering the in terrorem clause. The Surrogate then held that by conducting the deposition, the decedent’s son violated the in terrorem clause and forfeited his bequest.

Thereafter, in Matter of Singer [2d Dept.2008], a four-judge panel of the Appellate Division, Second Department, affirmed the Surrogate’s ruling.

After granting leave to appeal, Matter of Singer [2009], a unanimous Court of Appeals reversed the order of the Appellate Division and held that the son’s conduct did not violate the in terrorem clause. According to the court: “Both the purpose of testator’s in terrorem clause and the general public policy were satisfied here, since Alexander’s investigation led him to the conclusion that there was no basis upon which to file objections or contest the will. A broader construction of these clauses as manifesting testator’s intent to preclude the examination of this witness would essentially cut off all other persons from being asked for information, no matter the potential value or relevance of that information-even as to the medical or psychological condition of the testator at the time the will was executed. Interpreting these clauses narrowly will allow Surrogates to address on a case-by-case basis whether the conduct undertaken is in keeping with the testator’s intent.”

Apparently, the Court would permit in the first instance the deposition of any person with information of “potential value or relevance”. The court would then leave it to the Surrogates to determine on a case-by-case basis whether the conduct of such a deposition results in the forfeiture of a legacy of the person conducting the deposition, upon a determination of whether it would be “in keeping with the testator’s intent.”

Accordingly, pursuant to the holdings of the Court of Appeals, the branches of the motion seeking the depositions of the nominated successor executor and the drafter of the decedent’s prior will were granted.

However, since the court must also follow the holdings of the Appellate Division, Second Department, there can be no determination, prior to the will’s admission to probate, whether the conducting the requested examinations violates the in terrorem clause in the decedent’s will. Thus, while the motion to conduct the examinations was granted, the respondents must conduct them at their own peril.

On the request for the stay of the probate proceeding pending a determination in a related SCPA 2103 discovery proceeding wherein the turnover of at least $19.5 million from the respondent WSW Corporation, a closely-held family corporation, was sought by the preliminary executor, it must be noted that based on the moving papers, 40 percent of the decedent’s residuary estate passes under her will to 18 grandchildren, 6 of whom are minors. The aforementioned in terrorem clause contains a provision whereby if any beneficiary, or any beneficiary’s parent, directly or indirectly objects to the will’s admission to probate, such beneficiary’s legacy under the will is forfeited.

Here, if the in terrorem clause is valid, the decision by one of the decedent’s children to object to the will could have severe repercussions for the objectant’s own child or children, especially if the discovery proceeding is successful and the residuary estate is enhanced by nearly $20 million. The petitioner, the preliminary executor, failed to show any substantial prejudice to the estate by the court’s granting of the respondents’ application.

However, granting a stay of the probate proceeding would effectively stay the examinations discussed. Thus, the application was granted to the extent that the movants’ objections to the propounded instrument, if any, was ordered filed within 30 days of the court’s determination of the SCPA 2103 discovery proceeding, or until further order.

For more information regarding legal issues similar to the one discussed, contact us at Stephen Bilkis & Associates. Our Nassau County Last Will and Testament Attorneys, Nassau County Probate Attorneys and Nassau County Estate Attorneys are experts on the matter and can very well help you if you are in the same situation. Call us or visit any of our offices.

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