In re the Estate of Zurkow
This is а motion by a daughter of the decedent to stay the entry of a decree admitting the propounded instrument to probate; for an extension of time to file objections; for leave to еxamine the proponent and for a construction of the effect of a no-contest clause contained in the instrument offered for probate.
On the return day of the original citation in this proceeding, the movant appeared and the proponent was instructed to file an amended probate petition because the original petition made no mention of an adopted daughter of the decedent’s predeceased son. The movant was not served with supplemental citation and allegedly received one day’s notice that a decree admitting the will to probate was to be submitted to the court. Movant then obtained the instant order to show cause staying the entry of the decree.
Movant has examined the attesting witnessеs to the proposed will and now seeks to examine the proponent. She alleges that proponent, who is an attorney at law and the son of the decedent, acted as the decedent’s attorney; that the instrument was executed in his office; that the provisions of prior wills were changed to confer additional benefits upon proponent and his family at the expense of the movant; that the decedent was over 80 years of age at the time of execution, and was dependent upon others for all his physical needs.
The instrument offered for probаte contains a clause revoking any bequest to any beneficiary who opposed probate of the will, participated in actions to set aside or invalidate any of its provisiоns or who aided another in doing so. The movant requests that prior to a determination of her application to
“ The following conduct, singly or in the aggregate, shall not result in the forfeiture of any benefit under, the will: * # *
“(B) The disclosure to any of the parties or to the court of any information relating tо any document offered for probate as a last will, or relevant to the probate proceeding. * * *
“(D) The preliminary examination, under SOPA 1404, of a proponent’s witnesses in a probatе proceeding.”
It would appear from a reading of EPTL 3-3.5 (subd. [3], par. [B]) and its predecessor (Decedent Estate Law, § 126), that the conduct which it is intended to protect is the disclosure by a benefiсiary as a witness and not conduct by a beneficiary seeking to obtain disclosure frdin others. As the draftsman’s note to section 126 of the Decedent Estate Law pointed out: “ Certain so called in tеrrorem clauses * * * attempted to interdict not only the initiation of litigation by a beneficiary but even the disclosure by him to any person or to a court of any facts tending to show that the will was not entitled to probate. Failure to fulfill the condition was stated to operate as a revocation of the legacy or devises, to that beneficiary. Experienced probate practitioners have felt obliged to advise their clients to remain mute even when in possession of relevant evidence
As stated, in the Practicе Commentary to SCPA 1404 (McKinney’s Cons. Laws of N. Y., Book 58A): “While this provision has been deleted * * * its deletion should not change the present practice for what was previously contemplated was actually the cross-examination of any witnesses produced by the proponent. The provision was apparently deleted as unnecessary, as the right of cross-examination of such witnesses is always availablе. The situations in which the proponent will call any other witnesses are extremely rare.” (Emphasis supplied.) WTiile the situations where a proponent will call or produce a nonattesting witness are rare, they do occur. This apparently is the reason why EPTL 3-3.5 refers to a proponent’s witnesses as opposed to just attesting witnesses.
In the case at bar, while the proponеnt has not as yet produced any nonattesting witnesses, it is the practice of this court, where the proponent acted as draftsman or a member of his firm was draftsman of the proposed will and the proponent and/or his family receive a benefit by probate of the will, to require him to file an affidavit explaining that the will was freely and voluntarily made and why he or his family received preferential treatment (see Matter of Putnam,
The proponent has submitted affidavits upon this motion explaining that his testate share is substantially less than what he would receive in intestacy and that therefore the affidavits generally required should not be required in this case. It appears, however, that proponent’s daughter, who is a granddaughter of the decedent and who is not a distributee, will receive a substantial amount under the will. The benefits to proponent and his daughter to be received under the will greatly exceed his intestate share and the affidavits previously outlined must be filed with the court. By filing these affidavits the proponеnt will make himself a witness in support of probate of the will. The movant shall therefore be permitted to examine him pursuant to SOPA 1404, at least as to matters included in the affidavits. This examination will in turn be prоtected under EPTL 3-3.5 (subd. [3], par. [D]) from being in violation of any no-contest clause.
The proponent is accordingly directed, if he has not already done so, to comply with the practice of this court by filing the requested affidavits within 15 days of the date of service upon him of a copy of the order to be entered herein with notice of entry. If the proponent is unsure of what is required he mаy make inquiries 'at the Probate Department of this court. Following submission of the affidavits, movant will be permitted to examine proponent with regard to any matter contained therein. This examinatiоn shall take place within 15 days from the date of service upon movant of proof of filing these affidavits with the court,