A recent decision of Kings County Surrogate Margarita Lopez Torres in In Re Will Of Singer 841 N.Y.S.2d 212 has cost  a son his legacy under his father’s will. In addition to conducting an examination of the witnesses to the will pursuant to Section 1404 of the Surrogate’s Court Procedure Act,  Alexander Singer also examined the attorney drafter of a prior will made by his father. This additional deposition was held to be in violation of the will’s in terrorem clause.

Surrogate Lopez Torres noted that  even though the son failed to actually file objections to his father’s will, the additional discovery outside of the 1404 examinations (which are held to be non-violative of an in terrorem clause by law )together with ongoing negotiations which took over one year served to jeopardize the testamentary scheme . Section 1404 provides that specific individuals may be deposed and certain documents may be inspected without violating an in terrorem clause but the drafter of a prior will clearly falls outside of these individuals.

The court opined that the cardinal rule of the construction of an in terrorem clause is to carry out the intent of the testator. In this case the testator was specific in directing that his son take no action to contest or object to his will. The instrument contained two separate in terrorem clauses which effectively forbade any direct or indirect attempt to oppose, object to or in any way challenge the will or any portion of the estate plan set forth in it.  In this instance, the penalty for taking that extra step over the line was draconian.