EPTL 3-3.5

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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…

Last week, the Court of Appeals rendered a significant decision regarding the extent of discovery that may be conducted without triggering an in terrorem clause. In Matter of Singer, objections to probate were never filed. However, the issue presented was whether a beneficiary’s decision to depose the decedent’s prior attorney, a form of discovery not protected by the safe harbor provisions of EPTL 3-3.5 or SCPA 1404, triggered the two in terrorem clauses set forth in the propounded will. Jaclene D’Agostino discusses the case in this week’s blog entry.
Continue Reading Court of Appeals: Extra Deposition Did Not Violate In Terrorem Clause

Although void in some states, it is well settled that in terrorem or no contest clauses are enforceable under New York law. In a recent case, Surrogate Glen addressed the question of whether an in terrorem clause had been triggered by the petitioner contesting a New York instrument before a Florida court. This week’s entry, written by Robert Harper, discusses the decision.
Continue Reading Triggering In Terrorem Clauses With Out-Of-State Will And Trust Contests