Introduction

In Matter of Austin, 2025 NY Slip Op 05234 (App Div 2d Dept Oct. 1, 2025), the Second Department affirmed a Surrogate’s Court decree admitting a will to probate, granting summary judgment dismissing objections based on lack of capacity and undue influence, enforcing an in terrorem (no-contest) clause to forfeit the objectant’s benefits not only under the will but also under an associated irrevocable trust, and directing the Dutchess County Clerk to accept for recording a deed conveying two parcels to the trust.

The case is notable for two converging points of New York law: (i) robust enforcement of a broadly drafted in terrorem clause that expressly reaches contests to “the probate of or validity of th[e] will or any trust at any time created,” thereby stripping the objectant of both testamentary and trust benefits; and (ii) reaffirmation that delivery, not recording, vests title to real property, sustaining a deed to an irrevocable trust despite recording issues.

Parties: Petitioner-respondent Trina Goutremout sought probate of her mother’s will and related relief. Objectant-appellant Kyle Austin opposed probate and filed objections. The decedent, Shirley Austin, had previously created an irrevocable trust (2008) and later executed a will (2020) exercising a power of appointment to adjust trust and estate dispositions among her three children.

Issues Presented:

• Due execution of the will and testamentary capacity;
• Undue influence;
• Whether filing formal probate objections violated a broad in terrorem clause, causing forfeiture of benefits under both the will and the trust;
• Whether a deed to the irrevocable trust, executed but not properly recorded, was valid based on delivery and should be accepted for recording.

Summary of the Opinion

The Second Department affirmed the Surrogate’s Court (Dutchess County) in all respects:

• Due Execution: The proponent established due execution through deposition testimony of the drafting attorney-witness and the other attesting witness. The attorney’s supervision raised a presumption of regularity; the objectant failed to raise a triable issue.
• Testamentary Capacity: The proponent made a prima facie showing via the self-proving affidavit and witness testimony; the objectant failed to raise a triable issue.
• Undue Influence: The proponent established the absence of undue influence; the objectant failed to raise a triable issue.
• In Terrorem Clause Enforcement: By filing objections to probate, the objectant violated the will’s no-contest clause. The court enforced the testator’s intent and ordered forfeiture of the objectant’s benefits under both the will and the trust.
• Deed to Trust: The court directed the Dutchess County Clerk to accept the deed for recording. Delivery—not recording—vests title; the presumption of delivery at the deed’s date was unrebutted.

Detailed Analysis

1) Precedents and Authorities Cited

Due Execution and Presumptions

• EPTL 3-2.1(a): Sets statutory formalities for will execution (signature at end, two attesting witnesses, acknowledgment/attestation).
• Matter of Biondo, 215 AD3d 675 (2d Dept 2023): Confirms the proponent bears the burden to show due execution; also cited on in terrorem construction.
• Matter of Christie, 170 AD3d 718 (2d Dept 2019): Routine articulation of the due execution standard.
• Matter of Baldino, 230 AD3d 681 (2d Dept 2024): Supports summary judgment where deposition testimony of witnesses satisfies statutory requirements.
• Matter of Armato, 199 AD3d 999 (2d Dept 2021); Matter of Schmidt, 194 AD3d 723 (2d Dept 2021): Attorney-drafted and -supervised wills enjoy a presumption of regularity.

Testamentary Capacity

• Matter of Robbins, 206 AD3d 739 (2d Dept 2022): Recites the three-part capacity test—understanding the nature/consequences of making a will, the nature/extent of property, and the natural objects of bounty and relations.
• Matter of Armato; Matter of Schmidt: Self-proving affidavits and attesting witness testimony can establish capacity prima facie.
• Matter of Fiorentino, 224 AD3d 685 (2d Dept 2024): Illustrates failure of objectants to raise triable issues in the face of a prima facie showing.

Undue Influence

• Matter of Walther, 6 NY2d 49 (1959): The leading case defining undue influence—more than motive and opportunity; requires proof of actual exercise of influence that destroyed testator’s free agency.
• Crawford v Smith, 219 AD3d 691 (2d Dept 2023); Matter of Nurse, 160 AD3d 745 (2d Dept 2018): Contemporary applications dismissing undue influence claims without specific, non-speculative proof.
• Matter of Fiorentino: Again, failure to raise triable issues where proponent meets burden.

In Terrorem Clauses

• Carlson v Colangelo, ___ NY3d ___, 2025 NY Slip Op 02264: Court of Appeals: in terrorem clauses are enforceable but not favored and must be strictly construed.
• Matter of Singer, 13 NY3d 447 (2009): Cardinal principles—strict construction and primacy of testator’s intent; also associated with safe-harbor concepts around SCPA 1404 examinations.
• Matter of Ellis, 252 AD2d 118 (2d Dept 1998): Emphasizes carrying out the testator’s intent when construing will provisions, including in terrorem clauses.
• Matter of Cook, 244 NY 63 (1926): Intent derived from surrounding circumstances and purpose of the writing.
• Matter of Neva M. Strom Irrevocable Trust III, 203 AD3d 1255 (3d Dept 2022): Recognizes enforcement of no-contest clauses in the trust context.
• Matter of Tumminello v Bolten, 59 AD3d 727 (2d Dept 2009): Reiterates focus on testator intent in no-contest enforcement.

Deed Delivery and Recording

• Real Property Law § 244: A grant takes effect upon delivery; delivery and acceptance are what vest title.
• Manhattan Life Ins. Co. v Continental Ins. Cos., 33 NY2d 370 (1974): Confirms delivery/acceptance requirements.
• M & T Real Estate Trust v Doyle, 20 NY3d 563 (2013): Presumption that a deed is delivered and accepted as of its date, subject to rebuttal.
• Matter of Humann, 136 AD3d 1036 (2d Dept 2016): Delivery to and acceptance by the grantee (or third party for grantee) effectuate transfer.
• Winick v Winick, 26 AD2d 663 (2d Dept 1966): Delivery to a third party can suffice for transfer.
• Block 865 Lot 300, LLC v Baione, 230 AD3d 552 (1st Dept 2024): Presumption of delivery; acceptance principles.
• Morin v Morin, 197 AD3d 1171 (3d Dept 2021): Recording is not required to transfer title as between the parties; lack of recording does not defeat delivery.

2) The Court’s Legal Reasoning

Due Execution and Presumption of Regularity

The proponent satisfied EPTL 3-2.1(a) through deposition testimony from the drafting attorney-witness and the second attesting witness. Because the drafting attorney supervised execution, the presumption of regularity applied, shifting the burden to the objectant to raise a triable issue with competent evidence. He did not. The court’s reliance on this evidentiary presumption aligns with established Second Department practice.

Testamentary Capacity

Applying Robbins, the court reviewed whether the decedent understood (1) the act and its consequences (making a will), (2) the general nature and extent of her property, and (3) the natural objects of her bounty and her relations with them. Self-proving affidavits and attesting witness testimony were sufficient to establish capacity prima facie; the objectant failed to introduce particularized medical or circumstantial evidence creating a factual dispute.

Undue Influence

Citing Walther, the court found the proponent’s showing sufficient and the objectant’s counter showing insufficient. Mere suspicion, opportunity, or familial proximity does not constitute undue influence; proof must demonstrate the actual exercise of coercion or overreaching that overbore the testator’s will. No such proof was adduced.

In Terrorem Clause: Scope and Enforcement Across Instruments

The will’s in terrorem clause stated that any beneficiary who contested, obstructed, opposed, or resisted “the probate of or validity of th[e] will or any trust at any time created” by the decedent “shall forfeit all bequests and rights conferred” by the will “and any trust.” The objectant filed formal objections to probate. Even under the canon of strict construction (Carlson, Singer), the plain language and overarching intent were clear: the decedent sought to deter and penalize contests not only to her will but also to any trust she created, with cross-forfeiture of benefits under both instruments.

The court emphasized the “cardinal rule” to carry out the testator’s intent (Ellis; Cook) and concluded that the objectant’s actions squarely triggered the clause. Because the in terrorem clause explicitly extended to both instruments and forfeited rights “under the will and any trust,” the court upheld the Surrogate’s determination that the objectant forfeited benefits under both. This was so even though the trust had been funded years earlier and independently of the will; the will also exercised a testamentary power of appointment to alter the trust’s dispositive scheme, interlinking the two.

Deed Delivery vs. Recording: Validity of the 2011 Transfer to the Trust

The decedent and the objectant received two Poughkeepsie parcels as joint tenants (September 21, 2011) and then conveyed them to the trustees of the irrevocable trust (November 10, 2011). The petitioner produced an executed copy of the latter deed. Under RPL § 244 and Manhattan Life, delivery and acceptance—not recording—transfer title. There is a presumption that a deed is delivered and accepted at its date (M & T Real Estate Trust), which the objectant did not rebut with competent evidence.

The Surrogate’s directive to the County Clerk to accept the deed for recording followed as a practical matter: recording is not a precondition to the vesting of title (Morin), but the clerk’s recording maintains the chain of title for notice and marketability. The court reaffirmed that lack of recording does not undo a valid, delivered conveyance to the trust, and a clerk may be directed to accept such an instrument for recording.

3) Impact and Significance

Estate Litigation Strategy: The “Safe Harbor” Line

• New York strictly construes no-contest clauses and recognizes statutory safe harbors (commonly associated with SCPA 1404 examinations) that permit certain pre-objection discovery without forfeiture. Although Austin does not discuss safe harbors expressly, it underscores the risk: filing formal objections goes beyond safe harbor and can trigger forfeiture—particularly where a clause expressly reaches both wills and trusts.
• Litigants contemplating a challenge should consider utilizing permissible discovery before lodging objections to assess the proof and the risk of forfeiture.

Drafters and Planners: Coordinating Will and Trust In Terrorem Provisions

• Austin validates the practical efficacy of a will’s in terrorem clause that is drafted to cover “any trust” the testator has created, thereby deterring end-runs through parallel trust litigation and harmonizing consequences across instruments.
• When a trust reserves a testamentary power of appointment, clear no-contest language in the will can reinforce the settlor’s intent to prevent challenges that would disrupt a carefully integrated estate plan.
• Self-proving affidavits and attorney-supervised executions continue to be best practices to support summary judgment on due execution and capacity.

Trust Funding and Real Property Practice

• The decision reiterates a black-letter rule: delivery, not recording, vests title. Recording issues do not, without more, rebut the presumption of delivery and acceptance at the deed’s date.
• For practitioners, prompt recording remains a best practice to preserve notice and marketability. But where recording lags or is contested, Austin supports court direction to clerks to accept deeds when delivery has been shown.
• Particularly in family situations where a joint tenancy is shortly thereafter conveyed to a trust, maintaining executed originals and trustee acceptance documentation is critical to rebut later claims that the transfer “never happened.”

Doctrinal Clarification

• In terrorem clauses are enforceable in New York, strictly construed, and animated by testator intent. Austin applies these principles to uphold forfeiture of trust benefits when the clause so provides and the beneficiary files probate objections.
• The ruling harmonizes with recent high-court guidance (Carlson) emphasizing strict construction and with longstanding cases (Singer) protecting safe-harbor discovery while enforcing clear no-contest provisions.

4) Complex Concepts Simplified

• In terrorem (no-contest) clause: A will or trust provision penalizing a beneficiary (often by forfeiture) for challenging the instrument. Enforceable in New York, but strictly construed and limited by statutory safe harbors.
• Testamentary capacity: The testator must understand the nature and consequences of making a will, the general nature and extent of assets, and the natural objects of bounty (e.g., close family), and relations with them.
• Undue influence: Influence that overbears the testator’s free agency and substitutes another’s intent for the testator’s, proven by more than opportunity or motive—requires evidence of actual coercion or manipulation.
• Presumption of regularity: When a will is drafted by an attorney and execution is supervised by that attorney, a presumption arises that formalities were followed.
• Self-proving affidavit: A sworn statement signed by attesting witnesses, typically at the time of execution, that can be used to prove due execution and capacity without live testimony.
• Power of appointment: Authority, reserved in a trust, allowing the settlor/testator to direct how trust property is ultimately distributed, often exercisable by will.
• Delivery vs. recording of deeds: Delivery and acceptance of a deed transfer title; recording gives notice to the world and protects against certain subsequent claims but is not required to pass title as between the parties.
• Summary judgment in probate: The proponent must make a prima facie showing; the objectant must raise a triable issue with competent evidence. Conclusory or speculative allegations are insufficient.

5) What the Decision Does—and Does Not—Resolve

• Does: Confirms that a beneficiary who files probate objections contrary to a broad no-contest clause can forfeit benefits under both a will and a trust when the clause explicitly reaches both.
• Does: Reaffirms the delivery-over-recording rule for vesting title and authorizes court direction to record a delivered deed.
• Does Not: Expand or modify statutory safe harbors; the opinion does not analyze SCPA 1404 or delineate borderline conduct that may or may not trigger forfeiture. It simply holds that filing objections crossed the line.

Conclusion

Matter of Austin reinforces two pillars of New York trusts and estates law. First, a clearly drafted in terrorem clause can reach across instruments, deterring and penalizing challenges to both wills and trusts. Where a beneficiary elects to file probate objections, a clause expressly extending to “any trust” can result in forfeiture of trust and testamentary benefits alike—consistent with the twin principles of strict construction and effectuating the testator’s intent.

Second, the decision reiterates that delivery—not recording—transfers title to real property. An executed deed to an irrevocable trust is presumed delivered and accepted as of its date, and the lack of proper recording alone does not undo the conveyance; courts may direct clerks to accept such deeds for recording to perfect the public record.

For estate planners, Austin validates the use of integrated, cross-referencing no-contest clauses and underscores the evidentiary value of attorney-supervised execution and self-proving affidavits. For litigants, it is a cautionary tale about the risks of prematurely filing objections in the face of a broad no-contest clause. And for real property practitioners, it is a reminder that the mechanics of delivery remain decisive, even when recording lags.