This is a motion in a miscellaneous proceeding to enforce an in terrorem clause in the decedent's will and inter vivos trust. The movant is Patricia Walsh, the executor. The motion is opposed by Joan Tipping.

The decedent, John Tipping, died on August 31, 2009. He was survived by his wife, Eileen King-Tipping, and five daughters from a previous marriage. The decedent's last will and testament dated April 3, 2007 was admitted to probate by this court and letters testamentary were issued to Patricia Walsh. No objections were filed in the proceeding to probate the decedent's will. Further, no attempt was made to invalidate the inter vivos trust. The decedent's will divided his residuary estate equally between four of his five daughters. The fifth daughter was disinherited and she is not a party to this proceeding.

It is uncontroverted that the decedent, prior to making his will, established a checking account which was titled in the name of the decedent or Eileen A. Tipping (a daughter). On August 31, 2006, the account was changed into the names of the decedent or Eileen A. Tipping or Joan Tipping. Another account, a certificate of deposit, had few records except an internal bank record which listed Joan Tipping as the beneficiary.

Patricia Walsh, as executor, commenced a proceeding to turn over the aforementioned bank accounts to her as she claimed the accounts belonged to the estate as she alleged that they were merely convenience accounts. Eileen A. Tipping and Joan Tipping were respondents in the proceeding and filed an answer in which they claimed that the funds belonged to them either as [*2]survivors of a joint account or as the named beneficiary. The court held a hearing over a lengthy period of time and concluded that Joan Tipping was entitled to the account where she was named as the beneficiary and that with regard to the other account, neither party had met her burden of proof and the account passed as tenants-in-common to Eileen A. Tipping, Joan Tipping and the Estate of John Tipping.

Patricia Walsh now contends that her sister, Joan Tipping, forfeited her right to share in their father's estate and trust as she violated the two provisions of the No Contest Clause in Article Five, Section 4 of the decedent's will which disinherits any beneficiary who:

b.Objects in any manner to any action taken or proposed

to be taken in good faith by my Personal Representative

under my will or any codicil to it, whether my

Personal Representative is acting under court order,

notice of proposed action or otherwise, and said

action is later adjudicated by a court of competent

jurisdiction to have been taken in good faith.

d.Claims entitlement to (or an interest in) any asset alleged

by my Personal Representative to belong to my Probate

Estate, whether such claim is based upon a community

or separate property right, Marvin right, a contract or

other device, and said claim is later adjudicated by a

court of competent jurisdiction to be invalid.

In terrorem clauses have been the subject of many proceedings in New York and other states and it is oft cited that "equity abhors a forfeiture" (Begleiter, Anti-Contest Clauses: When You Care Enough to Send the Final Threat, 26 Ariz St LJ 629, 630 [Fall 1994]). "While in terrorem clauses are enforceable, they are not favored and must be strictly construed" (Matter of Singer, 13 NY2d 447, 451 [2009]). A determination of whether an in terrorem clause has been triggered involves both a construction of the will as well as an examination of the conduct of the person alleged to have triggered the clause (Matter of Ellis, 252 AD2d 118, 128 [2d Dept 1998]; Matter of Kalikow, 23 Misc 3d 1107(A) [Sur Ct, Nassau County 2009]).

The purpose of an in terrorem clause is to "quickly and smoothly settle the decedent's estate without fractious haggling and litigation and without wasting the estate assets (Matter of Muller,138 Misc 2d 966, 968 [Sur Ct, Nassau County 1998]). As originally enacted, the in terrorem clause was codified to "enable attorneys properly to advise clients as to their rights and obligations without assuming the risk of loss of benefit to the client" (see Comment to L 1946, ch 517).

As stated previously, in terrorem clauses are triggered by some conduct on the part of a beneficiary which causes him or her to forfeit the bequest. Typically, if someone claims an interest under an instrument he must give full effect to it and "cannot take what is devised to him and at the same time what is devised to another" (Smithsonian Inst. v Meech, 169 US 398, 414 [1898]). Where someone claims an interest in property which is the subject of a bequest to another beneficiary, the assertion of the right can trigger a forfeiture of his own bequest (Koeppel v Koeppel, 268 AD2d 282 [1st Dept 2000]; Matter of Kalikow, 23 Misc 3d 1107 (A) [Sur Ct, Nassau County 2009]). Where one seeks to enforce a claim against property not identified in the will, a forfeiture will not be found (Badouh v Hale, 22 SW3d 392, 397 [Sup Ct, [*3]Texas 2000]; see also Jacobs-Zorne v Superior Court, 46 Cal App 4th 1064, 1078 [Ct of Appeals, 2nd App Dist 1996] where the court found that a proceeding to claim title to a joint account did not trigger an in terrorem clause and opined that several California Appellate courts have determined that in terrorem clauses will not be triggered by proceedings beneficiaries bring to assert claims as to property which is not the subject of a bequest under a will).

In the instant proceeding, Joan Tipping defended against the estate's claim that it was entitled to the bank accounts. She did not challenge the will. She did not challenge the inter vivos trust. She did not claim title to property that was devised under the will as the accounts were not the subject of a bequest in the will. She was not forced to elect to take the account in lieu of her bequest which would have triggered the in terrorem clause. None of these actions can be deemed to have acted as a trigger of the in terrorem clauses.

Further, Joan Tipping clearly did not trigger the in terrorem clause in paragraph (d) of Article Five under a strict construction of the terms of the will. The court did not adjudicate her claim to be invalid. On the contrary, the court found in Joan Tipping's favor with regard to the certificate of deposit and found that with regard to the other account, neither party prevailed.

As to the in terrorem clause in paragraph (b) of Article Five, that paragraph provides, in essence, for the forfeiture of the bequest of any beneficiary who opposes any action taken by the executor which action is later found by a court of competent jurisdiction to have been taken in good faith. Here, the executor took the action of commencing the turnover proceeding against Joan Tipping and Joan Tipping opposed it. The in terrorem clause as drafted would work a forfeiture of Joan Tipping's bequest under the will provided that a court of competent jurisdiction determined that the executor's proceeding was commenced in good faith, and if the court finds that the testator's intent was that her bequest should be forfeit if she opposed the turnover proceeding. Because the court finds that was not the testator's intent, there is no necessity to determine whether the proceeding was brought in good faith because even assuming it was, the bequest is not forfeit.

Even where a will expressly provides for forfeiture of a bequest if the beneficiary makes a claim against the estate, the bequest is not forfeit if the claim is proven to be valid (Matter of Cronin, 143 Misc 559, 573 [Sur Ct, Westchester County 1932]). The testator apparently intended that rule to be applicable to his will as well as can be seen from paragraph (e) of Article Five which provides for forfeiture if a beneficiary "files a creditor's claim against the assets of my Probate Estate and such claim is later adjudicated by a court of competent jurisdiction to be invalid." Clearly, the testator did not intend for a beneficiary who brings a valid claim against his estate to forfeit her bequest. Therefore, if Joan Tipping had been the petitioner rather than the respondent, regarding the ownership of these accounts, her bequest would not be forfeit. It would be entirely inconsistent for the testator to intend his beneficiary to enjoy her bequest if she prosecutes a valid claim against her estate, yet intend for her to forfeit her bequest if she successfully defends a claim prosecuted against her by the estate. "The cardinal rule of construction of a will and, concomitantly, an in terrorem clause, is to carry out the intent of the testator (Matter of Ellis, 252 AD2d 118, 127 [2d Dept 1998] [citations omitted]). Because the court finds that the testator could not have intended Joan Tipping's bequest to be forfeit by successfully defending an action commenced against her by the estate, the executor's's motion to enforce the in terrorem clause and excluding Joan Tipping as a beneficiary of the estate is denied. [*4]

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

Dated: June 28, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court