First Department Holds In Terrorem Clause Would Be Triggered by Application to Vacate Probate

In Matter of Cohn, 72 A.D.3d 616, 2010 NY Slip Op 03486 (1st Dep’t 2010) the Appellate Division, First Department, affirmed the Surrogate’s determination that an application by a will beneficiary to vacate so much of a probate decree as granted letters testamentary to two non-family members would trigger the will’s in terrorem clause, as the proposed proceeding does not fall within the safe harbor provisions of EPTL 3-3.5(b). Although the First Department’s decision is silent on the issue, the Surrogate had also held that neither a proceeding to revoke their letters, based on post-death acts and omissions, nor a petition to reduce their commissions for failure to comply with SCPA 2307-a would not trigger the forfeiture clause. See, Matter of Cohn, NYLJ, March 11, 2009, p. 32., col. 5.