Dependent Relative Revocation Rejected

In Matter of Sharp, __ A.D.3d __, __ N.Y.S.2d __ (3d Dep't 2009) the Appellate Division, Third Judicial Department reversed the Surrogate's holding that dependent relative revocation had some vitality in New York as detailed in our post of September 24, 2008. The Appellate Division held:

"The essence of Surrogate's Court's determination here is that the inability to probate the 2001 will, alone, operates to render the express revocation of prior wills equivocal or conditional, ultimately resulting in the revival of the 1974 will. To countenance such a construction of the doctrine of dependent relative revocation would completely eviscerate the rule that revocation of a later will does not automatically revive a prior will (see EPTL 3-4.6) and, thereby, "weaken those [statutory] provisions calculated to protect testators generally from fraudulent alterations of their wills" (Matter of Andrews, 162 NY 1, 5 [1900]).

Moreover, any inference that decedent would have preferred probate of the 1974 will over intestate distribution is purely speculative. Thus, in our view, decedent's intention to revoke the 1974 will when she executed the 1977 will is clear and unequivocal and Surrogate's Court improperly applied the doctrine of dependent relative revocation to revive the 1974 will based upon the failure of the subsequent wills to qualify for admission to probate. Since the determinations of Surrogate's Court with respect to the petition for letters of administration were based upon the admission to probate of the 1974 will, the matter must be remitted for further proceedings."

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.