Case Law Trend Continues To Lessen The Bite of In Terrorem Clauses

Authored by: Paul J. Sowell, Esq.

The Court of Appeals decision in Matter of Singer, 13 NY2d 447 (2009) supports the growing case law trend that an in terrorem clause does not necessarily foreclose a disgruntled beneficiary from conducting discovery relevant to determining the validity of a Will.

The decedent, Rabbi Joseph Singer, executed a last will and testament dated April 15, 2003, which contained two in terrorem clauses. The first clause applied generally to all beneficiaries while the second applied specifically to his son, Alexander. The first in terrorem clause stated:

“If any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the probate of or validity of this Will or the revocable trust agreement created by me, or any part of my estate plan or any gifts made by me, or any of the provisions of this Will or of the revocable trust agreement created by me, in any court or commence or prosecute any legal proceeding of any kind in any court to set aside this Will or the revocable trust agreement created by me or any part of my estate plan or any gifts made by me, then in that event, such beneficiary, and all of such beneficiary’s issue, shall forfeit and cease to have any right or interest whatsoever under this Will or under the revocable trust agreement created by me, or in any portion of my estate, and, in such event, I hereby direct that my estate and the trust estate under such revocable trust agreement shall be disposed of in all respects as if such beneficiary had predeceased me without issue.”

The clause pertaining to the decedent’s son, Alexander, stated:

“I specifically direct that my son, Alexander I. Singer, not contest, object to or oppose this Will or The Joseph Singer Revocable Trust Agreement, or any part of my estate plan or any gifts made by me, …and I specifically direct that if my son takes any such action or brings on any such proceeding, neither my son nor any of his issue shall receive any share of my estate, whether passing under this Will, under The Joseph Singer Revocable Trust Agreement or otherwise.”

The decedent died March 5, 2004 and the Will was submitted for probate March 25, 2004. After the Will was submitted for probate, Alexander served a notice of discovery seeking copies of various documents and the deposition of certain witnesses, including the decedent’s previous attorney, Joseph Katz. The attorney for the executor expressed his opinion to Alexander’s attorney that Mr. Katz was not a proper witness for an examination and indicated his belief that Alexander would be contesting the Will within the meaning of the in terrorem clause by examining him. Alexander’s attorney disagreed and proceeded to depose Mr. Katz.

After discovery, Alexander did not contest the Will which was subsequently admitted to probate May 19, 2005. The Executor then commenced a construction proceeding seeking a declaration that Alexander violated the in terrorem clauses of the will by deposing Mr. Katz.

The court found that the deposition of Mr. Katz did not amount to an attempt to contest, object to or oppose the validity of the estate plan  and held that “Interpreting the clauses too broadly would frustrate the public policy of ensuring that wills are genuine and valid before they are admitted to probate”. The court went on to say that “Katz had represented decedent for years and had prepared seven prior testamentary documents, including a 2002  will, on his behalf. As such, Katz was clearly a person whom one would expect to have knowledge that was relevant to whether this will, executed in 2003, was the product of undue influence. Alexander conducted the examination of Katz for the purpose of gathering information in order to make an informed decision as to how to proceed.”

In addressing the intent of the testator and the goals of public policy, the court stated that “Both the purpose of testator’s in terrorem clause and the general public policy were satisfied here, since Alexander’s investigation led him to the conclusion that there was no basis upon which to file objections or contest the will. A broader construction of these clauses as manifesting testator’s intent to preclude the examination of this witness would essentially cut off all other persons from being asked for information, no matter the potential value or relevance of that information — even as to the medical or psychological condition of the testator at the time the will was executed.”

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