13 N.Y.3d 447 (2009)
The statutory safe harbor provisions of SCPA 1404 and EPTL 3-3.5 are not exhaustive, and conduct outside those provisions does not automatically violate an in terrorem clause if it does not amount to an attempt to contest the will and is consistent with testator’s intent and public policy.
Summary
This case concerns the enforceability of an in terrorem clause in a will. Rabbi Singer’s will contained such a clause, specifically aimed at preventing his son, Alexander, from contesting the will. After the will was submitted for probate, Alexander sought to depose the testator’s former attorney. The executor, Vivian, argued this violated the in terrorem clause. The Court of Appeals held that Alexander’s action did not violate the in terrorem clause because it did not amount to a contest and was for the purpose of gathering information before deciding whether to contest. The Court reasoned that strict construction of in terrorem clauses and the public policy of ensuring valid wills outweighed the testator’s literal intent to prevent any inquiry.
Facts
Rabbi Joseph Singer executed a will in 2003, which appointed his daughter, Vivian, as executor and left her a larger portion of his estate, citing her dedication to his care. The will contained two in terrorem clauses, one generally applicable and one specifically directed at Alexander, forbidding him from contesting the will or taking Vivian to court. After Rabbi Singer’s death, Vivian submitted the will for probate. Alexander served a notice seeking copies of documents and the deposition of certain witnesses, including the testator’s former attorney, Joseph Katz. Vivian claimed that deposing Katz violated the in terrorem clause.
Procedural History
The Surrogate’s Court determined that Alexander’s examination of a witness not specified in SCPA 1404(4) violated the in terrorem clause, revoking his bequest. The Appellate Division affirmed. The Court of Appeals reversed, holding that Alexander’s actions did not violate the in terrorem clause.
Issue(s)
Whether deposing a witness (the testator’s former attorney) not explicitly listed in SCPA 1404 and EPTL 3-3.5 violates an in terrorem clause, resulting in forfeiture of inheritance.
Holding
No, because the statutory safe harbor provisions are not exhaustive, and the conduct did not amount to an actual contest of the will and was consistent with the intent of ensuring wills are valid and genuine.
Court’s Reasoning
The Court emphasized that while in terrorem clauses are enforceable, they are disfavored and must be strictly construed, focusing on the testator’s intent. EPTL 3-3.5 provides a “safe harbor” for certain actions, such as preliminary examinations under SCPA 1404, but the Court found this list not exhaustive. The Court noted legislative intent to balance a testator’s right to prevent unwarranted contests with a beneficiary’s right to investigate the will’s validity. The court reasoned that the key inquiry is whether the conduct violated the testator’s intent as expressed in the clauses, while also taking into account the intent to ensure that wills are genuine and valid before probate. Here, deposing the former attorney, who had prepared prior wills for the testator, was a reasonable step to gather information, and did not constitute an attempt to contest the will. The Court stated that, “Interpreting these clauses narrowly will allow surrogates to address on a case-by-case basis whether the conduct undertaken is in keeping with the testator’s intent.”