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In re Singer

December 15, 2009

IN THE MATTER OF JOSEPH SINGER, DECEASED.
VIVIAN SINGER, RESPONDENT;
v.
ALEXANDER SINGER, APPELLANT.



The opinion of the court was delivered by: Lippman, Chief Judge

This opinion is uncorrected and subject to revision before publication in the New York Reports.

We conclude that the statutory safe harbor provisions of Surrogate's Court Procedure Act § 1404 and Estates, Powers and Trusts Law § 3-3.5 are not exhaustive and that, under the circumstances of this case, respondent Alexander Singer's conduct did not violate the in terrorem clauses of the decedent's probated will.

Rabbi Joseph Singer executed a last will and testament dated April 15, 2003, appointing his daughter, Vivian, as executor. Under the terms of the corresponding revocable trust agreement, testator directed that his Brooklyn home, the bulk of his tangible personal property and the sum of $200,000 were bequeathed to Vivian "in recognition of her unusual dedication to [testator] and for the taking care of [testator. Testator] realizes that his daughter gave her life to take care of him and feels a great sense of gratitude toward her." The trust agreement also provided that each of Alexander's sons would receive $15,000 and the remainder of the estate would be split equally between Vivian and Alexander.

The will contained two in terrorem clauses -- one that was directed to any beneficiary and the other applicable to Alexander in particular. The first in terrorem clause provides:

"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 following paragraph, pertaining to 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 my son not take my daughter, Vivian S. Singer, to a Bet Din (religious court) or to any other court for any reason whatsoever; 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."

Similar clauses appeared in the revocable trust agreement.

Rabbi Singer died March 5, 2004 and Vivian submitted the will for probate March 25, 2004. The following day, Alexander served a notice of discovery and inspection under CPLR article 31 and SCPA 1404 seeking copies of various documents and the deposition of certain witnesses, including Singer's previous attorney, Joseph Katz. Vivian's attorney wrote a letter to Alexander's counsel, expressing his concern that Mr. Katz was not a proper witness for an SCPA 1404 examination and indicating his belief that Alexander would be contesting the will within the meaning of the in terrorem clause by such examination, thereby forfeiting any inheritance. Alexander's attorney disagreed and proceeded to depose Mr. Katz.

Katz testified that he had no reason to believe that Rabbi Singer lacked testamentary capacity or that Vivian exercised undue influence over him. Katz explained that he had drafted the Rabbi's seven previous wills and indicated that there had been a history of conflict between the siblings concerning how the Rabbi's estate would be distributed. In addition, Katz testified that the previous will he had drafted in 2002 had also contained an in terrorem clause in order to reassure Vivian that Alexander would not contest the estate plan.

The will was admitted to probate May 19, 2005. The decree specified that objections had not been filed and probate had not been contested. Vivian then commenced this construction proceeding, seeking a declaration that Alexander violated the in terrorem clauses of the will by deposing Mr. Katz.

Surrogate's Court determined "that examination of parties not specified in SCPA [] 1404(4) violates an in terrorem clause" and that Alexander had violated the discovery limits established by the Legislature. The court then determined that Alexander violated the in terrorem clauses of testator's will and revoked his bequest. The Appellate Division affirmed, finding that Alexander's conduct violated the in terrorem clauses as an attempt to contest the will and that the deposition of testator's former attorney did not fall within the safe harbor provisions of EPTL 3-3.5 and SCPA 1404 (52 AD3d 612 [2d Dept 2008]). We granted leave to appeal and now reverse.

The paramount consideration in will construction proceedings is the testator's intent (Matter of Fabbri, 2 NY2d 236, 239 [1957]). In that context, while in terrorem clauses are enforceable, they are "not favored and [must be] strictly construed" (Matter of Fairbairn, 46 AD3d 973, 974 [3d Dept 2007] [citation omitted], lv denied 10 NY3d 708). Despite the presence of an in terrorem clause in a will, EPTL 3-3.5 provides that certain conduct by a beneficiary will not result in forfeiture --specifically, as relevant here, "[t]he 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" (EPTL 3-3.5 [b] [3] [D]). Under the SCPA, these individuals "may be examined as to all relevant matters which may be the basis of objections to the probate of the propounded instrument" (SCPA 1404 [4]).

The issue presented here is whether Alexander violated the in terrorem clauses by going beyond the statutory safe harbor and deposing testator's former attorney. Although the statutes include only a few particular groups, circumstances may exist such that it is permissible to ...


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