Construction of Wills and Trusts

The recent opinion by the Appellate Division, Third Department, in In re Strom Irrevocable Trust III, 2022 NY Slip Op 01356, provides a cautionary tale to estate litigators who conduct SCPA 1404 examinations in the face of a trust instrument’s in terrorem clause. While in terrorem clauses are strictly construed, the Appellate Division found that the subject clause had been triggered as a result of conduct engaged in by the respondent during the course of a probate proceeding regarding the grantor’s will. Ilene S. Cooper discusses the decision in our latest post.
Continue Reading Third Department Examines In Terrorem Clause

My colleagues have written on the enforceability of in terrorem clauses, and the courts continue to confront challenges in reconciling the testator’s intent to impose an in terrorem condition with the rights of beneficiaries to challenge the conduct of their fiduciary. The New York County Surrogate’s Court’s recent decision in Matter of Merenstein provides further

It is easy to be cynical about the “pots and pans,” “tchotchkes,” and “junk” – – the property that is often divided in a contentious manner at the bitter end of an estate litigation, or sometimes forgotten after years of litigation. An ongoing dispute in one of my cases led me to reflect on a

In construing an in terrorem provision, or any part of a will, the paramount consideration is identifying and carrying out the testator’s intent. Although paramount, the testator’s intention will not be given effect if doing so would violate public policy. For example, an in terrorem provision that purports to prevent a beneficiary from questioning a fiduciary’s conduct is void as contrary to public policy. The recent decision of Matter of Sochurek illustrates the difficulty in reconciling the testator’s intention in respect of an in terrorem condition with the rights of beneficiaries to obtain an accounting or otherwise challenge the actions of their fiduciary. Brian Corrigan discusses the case in our latest entry.
Continue Reading Coordinating a Testator’s Intention with Public Policy Can Prove Challenging When Construing an In Terrorem Condition

In Levien v Johnson, the New York County Surrogate’s Court recently enjoined the trustees of a testamentary trust from proceeding in Texas to challenge the adoptions of two adults, Parvin Johnson, Jr. and Kenneth Ives, by the grandsons of the Decedent, Arnold Levien. As the great-grandsons of the Decedent, Messrs. Johnson and Ives would be members of the class of remainder beneficiaries of the trust entitled to distributions. Hillary Frommer discusses the decision in our latest post.
Continue Reading Court Enjoins Trustees from Going to Texas for a “Second Bite at the Apple” to Stop Beneficiaries from Inheriting

In terrorem clauses generally provide that, where a beneficiary under a testamentary instrument unsuccessfully challenges the instrument’s validity, the beneficiary will forfeit any interests obtained under the instrument. Testators include in terrorem clauses in their wills in order to dissuade estate beneficiaries from taking action that is contrary to the testators’ wishes, as expressed in their testamentary instruments. While a paramount objective of the Surrogate’s Court is to act according to testators’ wishes, in terrorem clauses must be narrowly construed, and certain in terrorem provisions are violative of public policy. In our latest post, Rob Harper provides examples of in terrorem clauses that contravene public policy and, thus, are unenforceable under New York law.
Continue Reading In Terrorem Provisions That Violate Public Policy

Two recent decisions from the New York County Surrogate’s Court attempt to answer this question. In Estate of Weisberg, decided on April 8, 2014, the court addressed the issue of marriage. Faced with competing petitions for letters of administration, the court was asked to find as a matter of law, that the cross-petitioner was the decedent’s wife and sole distributee of the decedent’s estate. In Levien v Johnson, decided on April 14, 2014, the court considered whether two adults adopted by the decedent’s grandchildren constituted “great-grandchildren” under the decedent’s will. In both cases, the court was asked to find that these familial relationships existed as a matter of law. Hillary Frommer discusses the decisions in our latest entry.

Continue Reading To be Family or Not to be Family? That is the Question

The Appellate Division recently addressed an unusual issue in the case of Trotta v. Ollivier, namely, whether the estate of a joint tenant may sue the surviving joint tenant to recover payments the decedent had made for purchase and upkeep of the property. Eric Penzer discusses the decision in our latest entry.
Continue Reading Appellate Division Decides Case Of First Impression Regarding Joint Tenancy Issue

If the intended recipient of a charitable bequest can no longer be identified, an executor or trustee will often commence a cy pres proceeding in the Surrogate’s Court to determine the appropriate recipient of the funds. In our latest entry, Eric Penzer discusses a decision in the context of a cy pres application, focusing on the standing of a possible alternative recipient of the subject bequest to participate in the proceeding.
Continue Reading Court Decides Issue Of Standing To Participate In Cy Pres Proceeding