Senate Bill S4591A

                                BILL NUMBER:S4591A

TITLE OF BILL:
An act
to amend the estates, powers and trusts law and the surrogate's court
procedure act, in relation to examinations before trial where the will
contains a provision conditioning a disposition on the beneficiary of the
disposition not contesting the will

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Surrogate's Court Advisory Committee.

This measure would clarify the scope of disclosure authorized where a
will contains a no contest clause. While the Court of Appeals in
Matter of Singer, 13 NY3d 447 (2009), made clear that the governing
statutes are not exclusive, subsequent decisions indicate a necessity
to clarify the law for practitioners.

The Court's decision in Matter of Singer has greatly altered the law of
no contest clauses. The decedent's will contained two no contest
clauses, one applicable to all beneficiaries and one directed
expressly to the decedent's son. The first clause provided "If any
beneficiary shall, in any manner, directly or indirectly, contest,
object to or oppose, or attempt to contest, object to or oppose, the
probate of or validity of this Will or the revocable trust agreement
              

created by me, or any part of my estate plan or any gifts made by me,
or any of the provisions of this Will or of the revocable trust
agreement created by me, in any court or commence or prosecute any
legal proceeding of any kind in any court to set aside this Will or the
revocable trust agreement created by me or any part of my estate plan
or any gifts made by me."

The second clause directed that the son "not contest, object to or
oppose this Will or The Joseph Singer Revocable Trust Agreement, or
any part of my estate plan or any gifts made by me, and I
specifically direct that my son not take my daughter, Vivian S.
Singer, to a Bet Din (religious court) or to any other court for any
reason whatsoever; and I specifically direct that if my son takes any
such action or brings on any such proceeding, neither my son nor any
of his issue shall receive any share of my estate."

After the will was offered for probate the son's attorney deposed not
only those persons whose examination would not violate a no contest
clause under EPTL 33.5(b)(3)(D) (the "safe harbor") and whose
examination is allowed by SCPA 1404(4) but also the lawyer who
drafted the decedent's prior will. The son did not file objections
and the will was duly admitted to probate.

The executor then began a construction proceeding asking the surrogate
to declare that her brother had indeed violated the no contest
clause. The Surrogate determined that the examination of the
testator's prior attorney, an examination outside of the safe harbor
of EPTL 3-3.5(b)(3)(D), did indeed violate the no contest clause. On
appeal the Appellate Division affirmed, finding the no contest clause
prohibited contesting the will "in any manner" and that the


examination of the testator's prior attorney was outside of the
statutory safe harbor. The Court of Appeals granted leave to appeal
and reversed.
The Court held that the statutory safe harbor was not exclusive:
"[C]ircumstances may exist such that it is permissible to depose
persons outside the statutory parameters without suffering
forfeiture." The Court went on to find that the son's action did not
violate the testator's intent. The key is the court's conclusion that
the two no contest clauses "can reasonably be interpreted to express
testator's wish that [the son] not commence court proceedings of any
type against the estate plan." In addition, and in complete harmony
with well established law, a no contest clause must be construed
narrowly. Taking all of this together, the examination of the
testator's former attorney "did not amount to an attempt to contest,
object to or oppose the validity of the estate plan."

It can be fairly said that the holding of Matter of Singer is that the
safe harbor is not exclusive, but whether or not venturing beyond the
harbor will result in being torpedoed depends on the "circumstances."
However, the relationship is not clear between the "circumstances"
that make it permissible "to depose persons outside the statutory
parameters without suffering forfeiture" and language of the
particular no contest clause (or clauses) in the document. More
precisely, it is not clear how the surrogate can decide that the
testator's intent embodied in the no contest clause without
construing the clause; and how a will can be construed before it is a
will, that is, before it is admitted to probate. This is exactly the
problem that arose in Matter of Baugher, 29 Misc.3d 700 (2010), in
which Surrogate Riordan was faced with a request for orders
allowing the examination of the nominated successor executor of the
instrument offered for probate as well as that of the drafter of an
instrument purporting to be the decedent's prior will. The court read
Singer to mean that the Court [of Appeals] would permit in the first
instance the deposition of any person with information of "potential
value or relevance" and leave it to the Surrogates to determine on a
case-by-case basis whether conduct of such a deposition results in
the forfeiture of a legacy of the person conducting that deposition,
based on the Surrogate's determination of whether such a holding
would be "in keeping with the testator's intent."

"Since this court must, of course, follow the holdings of the Court of
Appeals, the branches of the motion seeking the depositions of the
nominated successor executor and the drafter of the decedent's prior
will are granted. However, since this court is also constrained to
follow the holdings of the Appellate Division, Second Department,
there can be no determination by this court prior to the will's
admission to probate whether the conducting of these examinations
violates the in terrorem clause in the decedent's will (Matter of
Martin, 17 AD3d 598 [2d Dept 2009]). Thus, while the motion to
conduct the examinations is granted, the respondents conduct them at
their own peril."

In short, the safe harbor is not exclusive, but whether or not the
examination of someone not listed in the statute violates a no
contest clause apparently can only be determined after the will is
admitted to probate. Even if the party conducting the examination
decides not to object to probate of the will, construction of the no


contest clause could result in a forfeiture. The statement by the
Singer court that "circumstances" can justify the expansion of the
safe harbor on a case by case basis coupled with the "no construction
before admission" principle invites a statutory expansion of the safe
harbor so that at least some actions can be taken without fear of
violating a no contest clause, not matter what the no contest clause
is subsequently construed to mean.

This measure therefore expands the safe harbor at the discretion of
the Surrogate so long as special circumstances exist which indicate
that the examination of a person not expressly included in the
statutory safe harbor may produce information respecting the validity
of the will that is of substantial importance or relevance to a
decision to file objections. The new provision echoes Uniform Rule
207.27 (22 NYCRR 207.27), which limits examinations before trial in
contested probate proceedings "[e]xcept upon the showing of special
circumstances, . . . to a three-year period prior to the date of the
propounded instrument and two years thereafter, or to the date of
decedent's death, whichever is the shorter period." Both this measure
and the existing regulation, therefore, entrust to the Surrogate the
intelligent management of the discovery process.

This measure would have no fiscal impact on the State. It would take
effect immediately and shall apply only to estates of decedents who
die on and after such effective date.

2011 Legislative History:
None. New proposal.