Surrogate Declines to Determine Whether Examination Would Trigger In Terrorem Clause

In Matter of Baugher, __ Misc. 3d __, 2010 NY Slip Op 20359 (Sur. Ct. Nassau Co.),, citing the Court of Appeals decision in Matter of Singer, the Surrogate granted an application for permission to depose the nominate successor executor and the attorney-drafter of the prior will as persons possessing information of potential value or relevance, but declined to rule whether these examinations would trigger the will’s in terrorem clause, relying on an a prior Appellate Division, Second Department decision which held that prior to probate the Surrogate lacks authority to construe the terms of a will. Matter of Martin, 17 AD3d 598, 2005 NY Slip Op 03059 (2d Dep’t 2005).