PROBATE PROCEEDING v. << (2020)

Before the court in this probate proceeding is a motion by Aleesa Adams Haro (respondent) seeking an order: (1) construing the in terrorem clause in an amendment and restatement, dated April 24, 2019 of the Robert M. Adams Trust dated November 1, 2013 to the effect that discovery pursuant to Section 1404 of the Surrogate's Court Procedure Act in connection with the probate of the instrument purporting to the be last will and testament of Robert Adams (decedent) dated April 24, 2019 would not trigger such in terrorem clause; and (2) directing Anita Cleava Adams (petitioner) to be examined pursuant to SCPA 1404. The motion is opposed by the petitioner.

The decedent died on April 29, 2019. He was survived by his wife, the petitioner and two children, the respondent and Curtis S. Adams. The decedent's will dated April 24, 2019 has been offered for probate. The will devises the condominium in Port Washington to the petitioner with the residuary to pour over into the Robert M. Adams Trust dated November 1, 2013.

The Robert M. Adams Trust (Trust) was restated on April 23, 2015 and on April 24, 2019. As is pertinent to this proceeding, the versions of the Trusts gave varying interests upon the death of the decedent to his two children. The restated April 24, 2019 Trust provides that upon the death of the decedent, the balance of the trust is to be held in further trust for the benefit of the petitioner. Upon her death, the balance is to be distributed one half to the decedent's then living issue and one half to the petitioner's then living issue. Article TENTH entitled “NO CONTEST” provides in Section A, that if a beneficiary of the Trust directly or indirectly opposes, contests, attacks the agreement or interferes with the administration of the trust, then the beneficiary shall be deemed to have predeceased the decedent leaving no issue. Section B provides:

“If for any reason any Beneficiary, in any manner whatsoever, whether directly or indirectly, opposes, contests, attacks and/or files any objection to or otherwise delays the probate of the Grantor's Last Will and Testament, or any provision thereof, regardless of whether such opposition, contest, attack, and/or objection is subsequently withdrawn, then, notwithstanding anything in this Agreement to the contrary, said Beneficiary shall, for all purposes of this Agreement, be deemed to have predeceased the Grantor leaving no issue.”.

The limited question before the court is whether conducting discovery pursuant to SCPA 1404, including the examination of the petitioner, will trigger the in terrorem clause found in the Trust and result in a forfeiture. The petitioner argues that the safe harbor provisions of EPTL 3-3.5 do not apply to in terrorem clauses found in inter vivos trusts. As such, the petitioner argues that if the respondent conducts discovery pursuant to SCPA 1404, her conduct will result in a forfeiture of her interest.

EPTL 3-3.5(b) provides:

“A condition, designed to prevent a disposition from taking effect in case the will is contested by the beneficiary, is operative despite the presence or absence of probable cause for such contest, subject to the following: ․

(3) The following conduct, singly or in the aggregate, shall not result in the forfeiture of any benefit under the will: ․

(B) The disclosure to any of the parties or to the court of any information relating to any document offered for probate as a last will, or relevant to the probate proceeding.

(C) A refusal or failure to join in a petition for the probate of a document as a last will, or to execute a consent to, or waiver of notice of a probate proceeding.

(D) The preliminary examination, under SCPA 1404, of a proponent's witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding and, upon application to the court based upon special circumstances, any person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will.”

The discovery which is included in the safe harbor provision “allows the beneficiary to weigh the merits of his objections against the risk of losing his bequest, helps to avert some contests and facilitate the settlements in others, and allows the court, having heard the testimony of the executor, proponent, drafter and attesting witnesses, to discharge its SCPA 1408 obligation more easily” (Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, EPTL 3-3.5).

EPTL 3-3.5 applies to a condition designed to prevent a disposition from taking effect in case the will is contested and provides that the beneficiary may engage in limited discovery without causing a forfeiture. In relevant part, EPTL 3-3.5(b)(3)(D) provides that a “preliminary” examination of persons pursuant to SCPA 1404 will not constitute a breach of an in terrorem clause as a matter of law (Matter of Ellis, 252 A.D.2d 118, 128-129, 683 N.Y.S.2d 113 [2d Dept. 1998]). Simply because the in terrorem clause is in the Trust and not in the will should not result in the beneficiary from being foreclosed from exercising any rights she has pursuant to EPTL 3-3.5.The motion is therefore GRANTED in its entirety.

This constitutes the decision and order of the court.

Margaret C. Reilly, J.