Matter of Weintraub

[*1] Matter of Weintraub 2013 NY Slip Op 51071(U) Decided on June 26, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 26, 2013
Sur Ct, Nassau County

In the Matter of the Probate Proceeding, Will of Florence Weintraub, Deceased.



2011-366557



Robert M. Harper, Esq. (for respondent)

Farrell Fritz, P.C.

1320 RXR Plaza

Uniondale, NY 11556-1320

Jules A. Epstein, P.C. (for petitioner)

600 Old Country Rd., Suite 505

Garden City, NY 11530

Edward W. McCarty, J.

In this probate proceeding, the decedent was survived by a son and two adult granddaughters, the issue of a predeceased daughter. The propounded instrument contains a broad in terrorem clause effectively disinheriting any beneficiary who unsuccessfully challenges the will. It appears that the decedent's son receives less than his intestate share and less than he would have received under prior wills of the decedent. He has moved the court for an order permitting his attorney to depose Janice Holzberg, Esq., an associate of the attorney who drafted and supervised the execution of the will, as part of the SCPA 1404 examination, thereby avoiding the forfeiture provision of the in terrorem clause. The motion is opposed.

Under the Decedent Estate Law, the predecessor to the EPTL, an in terrorem clause was not violated by a beneficiary's failure to join in a probate petition or by the refusal to sign a waiver and consent. There were, however, no "safe harbor" provisions allowing the taking of any depositions without triggering the in terrorem clause (see Decedent Estate Law §126). It was only with the enactment of the EPTL in 1966 that a beneficiary could take depositions without fear of triggering the in terrorem clause, and then only the depositions of the attesting witnesses (L 1966, ch 952, effective Sept. 1, 1967). EPTL 3-3.5 and SCPA 1404 were amended in 1992 to permit the examination of the attorney who drafted the will (L 1992, ch 127, effective Jan. 1, 1993) and again in 1993 to permit the examination of the proponent of the will where the will contains an in terrorem clause (L 1993, ch 514, effective Jan. 1, 1994). Most recently, and following the Court of Appeals' decision in Matter of Singer (13 NY3d 447 [2009]) and this court's decision in Matter of Baugher (29 Misc 3d 700 [2010]), the Legislature again amended [*2]the two statutes to permit, upon application to the court based upon special circumstances, the examination of "any [other] person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will" (EPTL 3-3.5[b][3][D]; SCPA 1404[4]).

Here, the decedent had been diagnosed with Alzheimer's Disease prior to the execution of the will, which occurred in the hospital on February 9, 2011. The hospital record contains references to the decedent as "confused" and "disoriented." Also, Ms. Holzberg's notes of her meeting with the decedent in the hospital on February 7, 2011, two days prior to the will's execution, indicate that the decedent was not comfortable signing any documents on that date, that she was confused as to what she wanted, and did not even remember speaking with the attorney draftsman that day although she had. On this record, the court is satisfied that the movant has demonstrated that special circumstances exist to permit the deposition of Ms. Holzberg as part of the SCPA 1404 examination.

Accordingly, the motion is granted. The respondent may take the testimony of Janice Holzberg as part of the SCPA 1404 examination upon noticing her for examination; objections if any are due 10 days after completion of Ms. Holzberg's examination.

This decision constitutes the order of the court and no additional order need be submitted.

Dated: June 26, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court