By Jason Stern
In NY according to the NY estate law you can disinherit anyone you would like unless that someone is your spouse. Your spouse is entitled to their right of election of one third (1/3) of all assets within your probateable NY estate and most of your non-probatable NY estate assets as well. Your probatable NY estate being all assets solely in your name at the time of your passing opposed to assets left either in trust for or with a beneficiary designation for parties other than your spouse. However the NY estate law makes no provision requiring a testator to draft a will leaving any portion of their estate to anyone else such as parents, siblings, children or even grandchildren. Pursuant to the NY estate law your NY attorney drafted will can completely disinherit these distributees from your NY estate if you so choose.
However, as a NY estate lawyer with over twenty years of experience litigating NY estates on behalf of families I can tell you that it is within any distributees’ right, your next of kin, to contest your NY will under §1404 of the SCPA. While an SCPA §1404 proceeding is sometimes warranted when stellar facts evidencing undue influence or lack of due execution exist, these proceedings are mostly just an annoyance to the NY estate. In NY the chances of successfully challenging an attorney drafted will by an experienced NY estate lawyer is negligible. However these cases can tie up the NY estate with costly litigation fees for a year or longer. As such experienced NY estate lawyers will include an In Terrorem Clause within the NY will accompanied by a nominal specific bequest to any potential objectant to the NY will. Whereby rather than completely disinheriting the distributee, next of kin, from the NY estate the NY will provides a nominal amount to them accompanied by the In Terrorem Clause, also called the No-Contest Clause. Should the distributee move forward with the proceeding to contest the NY will they would forfeit their nominal bequest should they lose.
Estate of Gene Roddenberry
When the creator of Star Trek, Gene Roddenberry passed away in 1991 he left behind a considerable fortune amassed over four decades of brilliant writing and cinematography. In fact Roddenberry’s estate was valued at a half billion dollars in 1991 money, which would be the equivalent to more than $1 billion today. In his will Roddenberry set up a trust leaving the lion share of his estate to his second wife Barrett with $500,000.00 payments made to each of his children from his prior marriage. However Roddenberry’s will did include an In Terrorem Clause, No-Contest Clause, for any party who chose to initiate a proceeding to overturn or challenge his will.
While $500,000.00 was a substantial sum of money, especially in 1991 valuation, this distribution did not sit well with Gene Roddenberry’s daughter Dawn Roddenberry who chose to move forward with the contesting of her father’s will anyway. Alleging that her step-mother, Bradberry’s second wife Barrett Roddenberry, unduly influenced her father into largely disinheriting his children from the estate, Dawn Roddenberry spent several years litigating this matter. While Dawn’s lawyers conducted examinations of witnesses and gathered evidence to present their case in court, they stopped short of formally filing objections to the Roddenberry Will. Perhaps Dawn and her estate lawyers felt that if they only delayed the probate of Roddenberry’s will without formally moving forward with the filing of objections to the will they would not trigger the will’s In Terrorem Clause and thus not forfeit the $500,000.00 bequest.
Dawn and her estate lawyers soon found out they were wrong, very wrong. Dawn Roddenberry’s engaging in discovery held up the probate of Gene Roddenberry’s estate for more than two years upsetting its primary beneficiary Barrett Roddenberry, Gene Roddenberry’s surviving spouse. Barrett’s attorneys argued that by engaging in discovery itself, that constituted the contesting of the will even if not formally. As such the Court found that Dawn’s litigation was sufficient to warrant the forfeiture of Dawn’s $500,000.00 bequest pursuant to the No-Contest Clause within the Roddenberry Will. Estate lawyers for Dawn Roddenberry appealed the Surrogate’s Court decision. However the Appellate Court upheld the lower court’s decision finding that Dawn’s actions constituted a challenge to her father’s will constituting her own disinheritance. Therefore Dawn Roddenberry forfeited her $500,000.00 inheritance by challenging the will under its In Terrorem Clause.
As an aside, the term In Terrorem Clause is derived from Latin and literally means in terror. Whenever a potential litigant inquires about the challenging of a NY estate lawyer drafted will the very first thing I look for is to see if there is an In Terrorem Clause. While our firm has successfully contested NY attorney drafted wills with both an In Terrorem Clause and without, it is always more precarious when one exists.
If you or someone you love passed away you may want to know what rights you have under the NY estate law. Feel free to call an experienced NY estate lawyer at The Law Offices of Jason W. Stern & Associates, at (718) 261-2444 for a free consultation. Our NY estate lawyers have 60 years of combined NY estate law experience handling these often complex NY estate cases in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange and Dutchess.