7.34 - A. Generally

• Jurisdiction: New York

A. Generally

An in terrorem clause is, in essence, a will provision threatening beneficiaries with forfeiture of their bequest if they contest the probate of the will.¹⁰⁰⁴ Such a clause may even operate to prevent a beneficiary from taking an intestate share if the beneficiary’s contest is unsuccessful.¹⁰⁰⁵ EPTL 3-3.5 governs such conditional testamentary gifts. Under EPTL 3-3.5(a), a testator may qualify a disposition of property without providing for an alternative gift upon breach or nonoccurrence of the condition. A testator’s “no contest” clause is generally operative whether or not probable cause exists to contest the will,¹⁰⁰⁶ but because New York law disfavors no contest clauses, such a clause will be strictly construed.¹⁰⁰⁷ A testator, however, may not absolve his fiduciaries from the duty of reasonable care, as doing so would violate public policy.¹⁰⁰⁸ Exceptions exist, however, if there is a contest to establish forgery or revocation of the will by a later will, and such contest is based on probable cause.¹⁰⁰⁹ Moreover, an infant or incompetent may affirmatively oppose probate of a will without forfeiting any testamentary benefits.¹⁰¹⁰ Certain conduct will not result in forfeiture of will benefits. As set forth in EPTL 3-3.5(b)(3), the permissible conduct includes:

(A) The assertion of an objection to the jurisdiction of the court in which the will was offered for probate.

(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 ¹⁰¹¹ 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 relevant to a decision to file objections to the will. ¹⁰¹²

(E) The institution of, or the joining or acquiescence in a proceeding for the construction of a will or any provision thereof. ¹⁰¹³

Any challenge to the appointment of an executor should be made in good faith when prohibited by an in terrorem clause.¹⁰¹⁴

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Notes:

^[1004] . See Black’s Law Dictionary 825...