| Matter of Fairbairn |
| 2007 NY Slip Op 09644 [46 AD3d 973] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Howard J. Fairbairn, Deceased.Barbara Fairbairn, as Executor of Howard J. Fairbairn, Deceased, Appellant; Carolyn DeSilva,Respondent. |
—[*1] Lasky & Steinberg, P.C., Garden City (Barry M. Lasky of counsel), for respondent.
Mercure, J.P. Appeal from an order of the Surrogate's Court of Delaware County (Becker,S.), entered August 14, 2006, which dismissed petitioner's application to disqualify respondentfrom taking any part of decedent's estate pursuant to a no contest clause.
In 2002, petitioner, who was decedent's second wife and is executor of his estate, sought toprobate decedent's will dated June 1997. Richard Fairbairn, decedent's son from a prior marriage,filed objections to the will, claiming improper execution, lack of testamentary capacity, andundue influence and fraud upon decedent by petitioner. This Court ultimately affirmed aSurrogate's Court order granting petitioner's motion for summary judgment dismissing theobjections and admitting the will to probate (Matter of Fairbairn, 9 AD3d 579 [2004], lv denied 3 NY3d612 [2004]).[FN*]Thereafter, Surrogate's Court determined that a no contest clause in the will [*2]excluded Fairbairn from taking any interest thereunder.
Petitioner then commenced this proceeding to invoke the no contest clause againstrespondent, decedent's daughter. Petitioner asserted that respondent provided two letters toFairbairn's attorney—one written by respondent in 2003 and another sent to respondentfrom decedent's accountant in 1993—in support of Fairbairn's objections. Specifically,petitioner claims that the letters characterized her as a "common, dirty, unprincipled woman froma no account family." At the ensuing hearing, respondent testified that she provided the letters inresponse to a request by Fairbairn's attorney for background information regarding decedent'sinvolvement with petitioner. It is undisputed that the letters were filed in Surrogate's Court inconnection with the prior proceeding without respondent's knowledge or consent.
Surrogate's Court ultimately dismissed petitioner's application herein, concluding thatpetitioner failed to establish that respondent took any actions opposing probate of the will.Petitioner appeals and we now affirm.
The no contest clause in decedent's will provides: "If any beneficiary under this Will shallin any manner oppose the probate of this Will or any of its provisions in any mannerwhatsoever, then in such event any share or interest in my estate given to such beneficiaryunder this Will shall be hereby revoked and shall be distributed as part of my residuary estate"(emphasis added). It is well settled that such no contest clauses are enforceable, "although notfavored and [must be] strictly construed" (Matter of Ellis, 252 AD2d 118, 127 [1998],lv denied 93 NY2d 805 [1999]; see EPTL 3-3.5 [b]). While the clause at issuehere is broad, it provided for revocation of a beneficiary's interest only if the beneficiaryopposed probate of the will or its provisions. It is undisputed, however, that in August2002, respondent signed a waiver and consent, admitting the validity of the will and consentingto probate and petitioner's appointment as executor. Moreover, there is no evidence to supportpetitioner's speculative assertion that respondent cooperated with Fairbairn in filing hisobjections or that the objections were the product of a conspiracy between petitioner andFairbairn (cf. Matter of Ellis, 252 AD2d at 127-128; Matter of Pasternack, 52Misc 2d 413, 415-416 [1966]). In the absence of any evidence of affirmative acts taken byrespondent to challenge or oppose the will, we agree with Surrogate's Court that merely sendingFairbairn's attorney two letters—which expressed personal dislike of both petitioner andher motives for marrying decedent but do not address either the validity of the will or petitioner'sfitness as executor—was not sufficient to trigger the no contest clause and bar respondentfrom taking under the will.
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: A more thorough recitation ofthe facts may be found in our prior decision.