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John J. Barnosky

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John Barnosky is a trusts and estates lawyer advising families, individuals, banks, foundations, and other institutions. Jack handles the full range of estate planning, probate and administration, as well as taxation matters. John also represents clients in litigated trusts and estates matters, including will contests, disputes over the validity of trusts, contested accounting proceedings, and tax disputes before the Surrogate’s Courts and other courts throughout New York.

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It is a rare day that the Court of Appeals, New York’s highest Court, deals with trust and estate matters, let alone something as granular as the validity of an in terrorem clause.  But speaketh they did, on April 17, 2025, in a lengthy opinion with a 13-page dissent to boot (Carlson v. Colangelo, 2025 NY Slip Op 02264). 

In this case, the Decedent never married but he was survived by a romantic partner, Kristine M. Carlson (“Carlson”), and by his daughter Crissy Colangelo (“Colangelo”), whose mother was a prior romantic partner of the Decedent.  The Decedent executed a pour-over Will and Revocable Trust the month before he died.  Under the Trust, the Decedent left his residence in Cortlandt Manor, New York to Carlson and his “interest” in an LLC which owned real estate to Colangelo with a statement that “it is Grantor’s sincere wish and desire that Crissy Colangelo provide a stream of income, not to exceed the sum of $350,000 in total, to Kristine M. Carlson.”  The Decedent named Colangelo as Trustee.

Both instruments contained in terrorem clauses.  The Trust clause provided:

In the event that any heir, distributee, beneficiary…shall contest any aspect of this Trust, or the distribution of the Grantor’s assets pursuant to his Last Will, inter vivos Trust agreement, beneficiary designations or non-probate beneficiary designations, or shall attempt to set aside, nullify, contest or void the distributions thereof in any way …

then the challenger would forfeit benefits under the instrument. 

After a number of failed attempts to resolve issues between them, Carlson commenced an action in Supreme Court seeking to compel Colangelo to distribute the residence to her, a declaration that Carlson was a pre-mortem 50% owner of the LLC, a direction that Carlson is entitled to the $350,000 income stream from the LLC, an accounting for the LLC, and punitive damages. Continue Reading Lengthy Opinion Delivered Regarding In Terrorem Clause

With a specific statute mandating that pre-nuptial agreements must be acknowledged, and with a specific statutory form of acknowledgment, it is surprising that there has been so much litigation over missing or defective acknowledgements and whether they can be cured after the fact. The Second Department recently addressed this issue in Matter of Koegel. Jack Barnosky discusses the case in our latest entry. …
Continue Reading Waiver of Right of Election: Correction of Defective Acknowledgment

While the Court of Appeals last year upheld the validity of contingency fee agreements in estate matters, particularly in litigation, where it approved contingency fees of over forty million dollars when the actual time spent was a fraction of that value, a recent New York County Surrogate’s Court case, Estate of Fanny Goldfarb, confirms that the size of an estate can still be a major factor in determining the reasonableness of a contingent fee, even though the services rendered and the result achieved were exemplary. Jack Barnosky discusses the decision in our latest post.
Continue Reading Contingency Fees – Size Matters

In Matter of Brigati, Surrogate Czygier of Suffolk County addressed an application to reform the decedent’s life insurance trust, which contained a significant amount of insurance. The instrument contained a number of terms which could cause inclusion in the decedent’s gross estate. Among other things, it provided that upon the death of the Grantor, the life insurance…

In Matter of Gilmore, the Second Department addressed the unusual situation of the inheritance rights of children who had been born prior to the execution of their father’s Will, but whose existence was unknown to their father until after his Will had been executed. Jack Barnosky discusses the case in our most recent entry.
Continue Reading “After Acknowledged Children” Denied Inheritance Rights