Surrogate Edward McCarty III
The will in this probate suit contained a broad in terrorem clause disinheriting any beneficiary who unsuccessfully challenged the will. Decedent's son moved for an order allowing his attorney to depose Holzberg, an associate of the attorney who drafted and supervised the will's execution as part of a Surrogate's Court Procedure Act 1404 examination, avoiding the forfeiture provision of the in terrorem clause. Under the predecessor to the Estates, Powers and Trusts Law (EPTL), an in terrorem clause was not violated by a beneficiary's failure to join in a probate petition, but there were no "safe harbor" provisions permitting the taking of depositions without triggering the clause. Under the EPTL, a beneficiary could take depositions without fear of triggering an in terrorem clause, including the attorney who drafted the will, and based on special circumstances, any other person whose exam the court decided may provide information regarding the validity of the will. The court noted decedent was diagnosed with Alzheimer's before execution of the will, and hospital records indicated decedent was "confused" and "disoriented." It stated it was satisfied movant showed that special circumstances existed permitting Holzberg's deposition as part of the §1404 exam, granting the motion.
