Recent Case May Expand the Safe Harbor Provisions of EPTL 3-3.5

            In terrorem clauses are a valuable drafting tool for a testator to prevent unwarranted will contests, however a recent case, Matter of Singer, 2009 N.Y. LEXIS 4475, 2009 NY Slip Op 9265 (Ct. App. Dec. 15, 2009), has broadened the latitude of a beneficiary’s right to investigate a will. Indeed, this recent Court of Appeals decision expanded the safe harbor provisions of EPTL 3-3.5 and SCPA 1404 to allow the beneficiary to depose the testator’s prior attorney who did not draft the will submitted for probate – even though prior attorneys are not one of the enumerated individuals under EPTL 3-3.5(b)(3)(D). 
            Instead, the Court of Appeals determined it is for the Surrogate to determine on a case-by-case basis whether the conduct undertaken by a beneficiary was keeping in the testator’s intent, rather than following the strict mandates of EPTL 3-3.5.  
            In Matter of Singer, the testator left his daughter, Vivian, a disproportionate share of his estate as “recognition of her unusual dedication” to him. The will contained two in terrorem clauses to ensure the testator’s wishes were honored – one for any beneficiary and one very specific clause directed to his son Alexander. 
After the will was submitted for probate, Alexander served document discovery and sought the depositions of certain witnesses, including the testator’s former attorney who drafted seven prior wills for the decedent, the latest of which also included an in terrorem clause. During questioning, the former attorney testified that he had no reason to believe the testator lacked capacity at the time the will was executed. 
            The will was eventually admitted to probate, and the decree noted that objections had not been filed and the probate had not been contested. Vivian then commenced a construction proceeding, seeking a declaration that her brother had violated the terms of the in terrorem clause by deposing a witness not delineated in EPTL 3-3.5(b)(3)(D). The Surrogate’s Court determined that the son had violated the discovery limits established by the Legislature, and the Appellate Division affirmed. 
            Surprisingly, the Court of Appeals reversed the Appellate Division and determined that the purpose of the testator’s in terrorem clause and the general public policy were satisfied because Alexander’s investigation led him to the conclusion that there was no basis upon which to file objections or contest the will. 
In reaching this conclusion, the Court of Appeals cited the trend for courts “to allow broad latitude in discovery of matters that could provide the basis for objections” and that the Legislature intended to balance the testator’s right to prevent unwarranted will contests against the beneficiary’s right to investigate in order to evaluate the risk involved in contesting the will notwithstanding the in terrorem clause. The Court opined that the Surrogate should decide on a case-by-case basis whether the conduct undertaken violated the testator’s intent. 
Practice Tip:
            Clearly, this case has serious implications. Essentially, the court determined that even the most carefully worded in terrorem clause may not prevent a beneficiary from taking the deposition of individuals as a preface to deciding whether to file objections or contest a will. 
However, in a concurring opinion, the Justice Graffeo opined that an in terrorem clause can be properly drafted to explicitly prohibit this type of inquiry by incorporating the statutes and explicitly stating that a beneficiary that makes or attempts to make any inquiry about the will other than those permitted by EPTL 3-3.5 and SCPA 1404 shall forfeit his or her bequest and extinguish any interest that the beneficiary’s issue may have in the estate.
Practitioners should consider this case when drafting in terrorem clauses.   

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