Ordered that the appeal from the order dated August 3, 2007 is dismissed, as that order was superseded by the amended order dated September 6, 2007; and it is further,
Ordered that the amended order dated September 6, 2007 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the petitioner.
The Surrogate's Court properly determined that the appellant's conduct in deposing the testator's former attorney regarding drafts of prior wills violated the in terrorem clause set forth in "article sixth" paragraph 6 (A) and 6 (B) of the will. The in terrorem clause prohibited an "attempt to contest" the will "in any manner" ( see Matter of Ellis, 252 AD2d 118, 128). Furthermore, the act of deposing the testator's prior attorney was not protected under the safe harbor provisions set forth in EPTL 3-3.5 and SCPA 1404, which, inter alia, allow only the deposition of attesting witnesses, the attorney who prepared the will, and where, as here, the will contains an in terrorem clause, "the nominated executors in the will and the proponents" (SCPA 1404; see EPTL 3-3.5 [b] [3] [D]). The testator's former attorney did not fall within any of those categories. Accordingly, under the particular facts of this case, the Surrogate's Court properly granted the petition and revoked the appellant's bequest.
The appellant's remaining contention is not properly before this Court.