In this proceeding for construction of a Will, the resolution will determine whether one of the decedent's children is entitled to receive a share of the estate.

The decedent died on August 17, 2003 survived by four children. Her Will was admitted to probate by a decree of this court dated March 11, 2004. Letters testamentary issued to the decedent's sister Mary McGoldrick Bargellini, petitioner in this proceeding. Paragraph "THIRD" of the Will disposes of the entire estate after the payment of debts and expenses.

Paragraph "THIRD" of the Will provides:

"A. All the rest, residue and remainder of my property real

and personal, wherever situated and whether in possession or in

expectancy, including any property over which I have power of

appointment, all of which may hereinafter be referred to as my

residuary estate, I give, devise and bequeath to my children, in

equal shares, the then surviving issue of any that may have

predeceased me to take the share of their parent."

Paragraph "FOURTH" of the Will provides:

"If my son, GIONATA, does not sign a "Waiver of Citation" [*2]

or, if he is served with a Citation and fails, within sixty (60) days of the

service thereof, to advise my executrix in writing that he will accept

his share of my estate, I direct that his share shall lapse and be

divided among other surviving children and the issue of any

predeceased children, per stirpes."

In the probate proceeding, citation issued to Gionata Bargellini with a copy of the Will. The executrix states that she has not received a waiver of citation or any written statement from Gionata concerning his share of the estate.

The executrix seeks a construction of the Will to determine whether Gionata forfeited a one-fourth share of the residuary estate by his failure to comply with the literal terms of the Article "FOURTH." In this construction proceeding, jurisdiction was effectuated by substituted service upon Gionata. He did not appear in the probate proceeding and has not appeared in this construction proceeding.

An initial issue to consider is whether Gionata was aware of the condition in Paragraph "FOURTH" and the question of its interpretation. As to an heir at law, a court of equity will not impose a forfeiture where the beneficiary acted in ignorance of the condition (Merriam v. Wolcott, 61 How Pr 377 [1881]). This is consistent with the rule that a waived legal right must be predicated upon full knowledge of all the facts upon which the existence of the right depends (S & E Motor Hire Corp. v. New York Indem. Co., 255 NY 69 [1930]. It cannot be founded upon negligence, oversight or thoughtlessness (Gutman v. U.S. Cas. Co., 241 App Div 752 [1934]). The court is satisfied that Gionata received adequate notice of the provisions of the Will and the pending proceeding for construction.

The effect of Paragraph "FOURTH" upon Gionata's bequest depends upon whether it is designed to prevent his bequest from taking effect if he contests the will. If it is, it is subject to the limitations contained in EPTL 3-3.5. The conventional "in terrorem" clause triggers a forfeiture if the beneficiary objects to the validity of the Will and fails to defeat the Will. If the beneficiary is successful in his challenge to the Will, the "in terrorem" clause falls along with the Will and the beneficiary takes his intestate share or bequest under a prior Will (Atkinson, Handbook on the Law of Wills, sec. 82 [1952]).

An "in terrorem" clause which requires consent to probate forecloses the beneficiary from filing objections. It deprives the beneficiary of the opportunity to challenge the Will and insulates from attack a Will which is the product of fraud and undue influence.

This situation is addressed by EPTL 3-3.5(b)(3)(C) which provides that a forfeiture does not result from:

"A refusal or failure to join in a petition for the probate of a document

offered for probate as a last will or to execute a consent to, or waiver of

notice of a probate proceeding."

EPTL 3-3.5(b)(3)(C) replicates the language of its predecessor, Decedent Estate Law,

section 126 (L.1946 c.517). The "Notes of Commission" on that statute, state in part:

"The administration of justice requires that any party to litigation

have the untrammeled right to make a fair investigation of the facts. . .

A beneficiary ought not to be compelled to join in a petition for [*3]

probate or to consent to probate when he is in possession of knowledge

of fraud, undue influence or imposition upon the testator by the proponent."

(McKinneys Cons Laws of NY, Book 13, Decedent Estate Law Sec. 126)

Statutes or public policy may limit the means by which a testatrix may otherwise legally dispose of property (Matter of Walker, 64 NY2d 354 [1985]). A will may not condition a gift upon conduct which is in violation of a statute (Matter of Lang, 60 Misc 2d 232 [1969]).

As to this will, the question presented is whether the requirement that Gionata advise the executrix that he will "accept his share" comes within the scope of EPTL 3-3.5(b)(3)(C).

In the construction of a Will, determining the intention of the testatrix is not a matter of speculation or arbitrary conjecture (Matter of Krooss, 302 NY 424 [1951]). It is derived from the language of the Will (Matter of Culver, 294 NY 321 [1945]). Viewing paragraph "FOURTH" in its entirety, the court concludes that the testatrix was concerned with preventing Gionata from objecting to probate of the Will. Paragraph "FOURTH" on its face is clearly designed to foreclose objections to the will and is therefore subject to the limitations set forth in EPTL 3-3.5. The condition provided in Paragraph "FOURTH" that Gionata either sign a waiver or advise the executrix that he accepts his share is the condition which EPTL 3-3.5(b)(3)(C) declares shall not result in forfeiture.

In this case, it is interesting that Gionata, absent the existence of a prior will more favorable to him, actually lacked standing to object as he receives the equivalent of his intestate share under the Will (SCPA 1410; Matter of Eisenfeld, 52 Misc 2d 209 [1966]; Matter of Haddock, 22 Misc 2d 694 [1960]). As a result, even if Paragraph "FOURTH" did not run afoul of EPTL 3-3.5, limitations paragraph "FOURTH" would be inoperative as an "in terrorem" clause. However, because of the limitation in EPTL 3-3.5(b)(3)(C), the court is of the opinion that Gionata's standing or lack of standing to contest this will does not compel the court to reach a different conclusion as to the construction of Paragraph "FOURTH." The statute dictates the result.

As there is no forfeiture, Gionata is a beneficiary of one-fourth of the residuary estate.

Submit decree.

Dated: March 24, 2005

JOHN B. RIORDAN

Judge of the

Surrogate's Court [*4]