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).

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.