IN RE: Eugene P. Gold (2026)

Argued—January 12, 2026

DECISION & ORDER

M/

In a probate proceeding in which Cheryl Gold, as executor of the estate of Eugene P. Gold, petitioned pursuant to SCPA 1420 to construe the in terrorem clause in the will of Eugene P. Gold, Cheryl Gold appeals from an order of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated January 6, 2022.  The order denied the motion of Cheryl Gold for summary judgment on the petition.

ORDERED that the order is affirmed, with costs.

Many of the relevant facts underlying this appeal are set forth in this Court's decisions and orders in two related appeals (see Matter of Gold, _ AD3d _ [Appellate Division Docket No. 2020–09077;  decided herewith];  Matter of Gold, 170 AD3d 1174).

“ ‘On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.  The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.  Once this showing has been made, ․ the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial’ ” (Carlson v. Colangelo, 44 NY3d 116, 124, quoting Bazdaric v. Almah Partners LLC, 41 NY3d 310, 316).  Here, contrary to the contentions of Cheryl Gold, the executor of the estate of Eugene P. Gold, the Surrogate's Court properly denied Cheryl's motion for summary judgment on her petition pursuant to SCPA 1420 to construe the in terrorem clause in Eugene's will, in which she alleged that Kenneth Gold violated the in terrorem clause in Eugene's will.

“[W]hile in terrorem clauses are enforceable, they are not favored and [must be] strictly construed” (id. [internal quotation marks omitted] ).  “ ‘The cardinal rule of construction of ․ an in terrorem clause[ ] is to carry out the intent of the testator’ ” (Matter of Biondo, 215 AD3d 677, 678, quoting Matter of Ellis, 252 A.D.2d 118, 127).  “ ‘The intention must be gathered from all the surrounding circumstances and the writings interpreted according to the purpose which the parties had in mind’ ” (Matter of Austin, 242 AD3d 739, 742, quoting Matter of Cook, 244 N.Y. 63, 69).

Here, Cheryl alleged that Kenneth indirectly violated the in terrorem clause in Eugene's will by, inter alia, attempting to rescind his waiver and consent to the probate of the will of Eugene's predeceased wife, Grace K. Gold, which, among other things, created a trust over which Eugene had a limited power of appointment exercisable in favor of one or more of Grace's descendants (see Matter of Gold, 170 AD3d 1174).  With respect to the trust, Eugene's will provided that $2 million be distributed to each of Eugene's two daughters, Cheryl and Amy Kaufman, with the balance to be distributed to Eugene's descendants per stirpes (see id.).  Although an invalidation of Grace's will would have repercussions vis-à-vis the disposition of the trust, the Surrogate's Court properly determined that Cheryl failed to demonstrate, prima facie, the absence of any triable issues of fact with respect to her allegations.  Significantly, Kenneth has not lodged any contest to the validity of Eugene's will (see Matter of Austin, 242 AD3d at 742) or opposed in any manner the probate of Eugene's will.  Eugene clearly was aware of the provisions of Grace's will and could have specified, for example, that any litigation involving her will would result in a violation of the in terrorem clause (see Matter of Sochurek, 174 AD3d 908, 910;  see also Matter of Aoki [Aoki], 221 AD3d 479, 480).  Moreover, if the trust were invalidated, then the effect of this on Eugene's will would result from Eugene's inability to transfer any more than he legally owned or controlled, rather than from any challenge by Kenneth to Eugene's testamentary intent (see Carlson v. Colangelo, 44 NY3d at 126).

Cheryl's remaining contentions are without merit.

LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court