Court of Appeals Holds In Terrorem Clause Not Violated

In Matter of Singer, __ N.Y.3d, __ N.Y.S.2d __ (2009) the New York Court of Appeals held that an in terrorem clause was not violated by the taking of the deposition of the attorney who drafted many of the decedent's prior wills, even though the examination was not one of the specified examinations in SCPA 1404 and EPTL 3-3.5. The Court concluded that the statutory safe-harbor provisions are not exhaustive and that "circumstances may exist such that it is permissible to depose persons outside the statutory parameters without suffering forfeiture." The Court found that "[u]nder these circumstances, and construing the clauses narrowly, the conduct of this deposition did not amount to an attempt to contest, object to or oppose the validity of the estate plan. Interpreting the clauses too broadly would frustrate the public policy of ensuring that wills are genuine and valid before they are admitted to probate (see SCPA 1408 [1] ["Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution"])."

The argument of the appeal in the Court of Appeals can be viewed by clicking here.

This sponsor of this blog, Greenfield Stein & Senior, LLP, successfully represented the appellant in the Court of Appeals.