I write separately to explain my understanding of the rule being applied in this case. The common law recognized the validity of an in terrorem clause and the right of a testator to restrict beneficiaries from attempting to undermine the validity of a will. As our opinion notes, in terrorem clauses are not favored since they may *454result in a total forfeiture of a bequest and—because of this serious consequence—they must be strictly construed to conform to the testator’s expressed intent (see e.g. Matter of Fairbairn, 46 AD3d 973, 974 [3d Dept 2007], lv denied 10 NY3d 708 [2008]).
EPTL 3-3.5 and SCPA 1404 altered the common law. In enacting these statutes, the Legislature made a public policy decision that beneficiaries should be able to engage in certain inquiries pertaining to the circumstances surrounding the drafting of a will without risking forfeiture, even if the testator expressed an intent to make the will impervious to such future challenges (see e.g. Tur ano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 3-3.5, at 451-452). Thus, the Legislature decided that even the most carefully worded in terrorem clause cannot prevent a beneficiary from taking the deposition of “a proponent’s witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding” (EPTL 3-3.5 [b] [3] [D]) as a preface to deciding whether to file objections or contest a will.
Because we are required to construe the in terrorem clauses at issue here narrowly, we found it reasonable to conclude that the language of this will did not specifically impose forfeiture once Alexander Singer deposed the attorney who drafted his father’s prior wills. Thus, the safe harbor provisions set forth in SCPA 1404 and EPTL 3-3.5 are inapplicable and the fact that the testator’s former attorney does not fall into one of the categories of persons listed in the statutes is irrelevant in this case.
I believe, however, that an in terrorem clause can be properly drafted to explicitly prohibit this type of inquiry. A testator could, for example, draft an in terrorem clause that incorporates the statutorily-authorized preliminary examinations by explicitly stating that a beneficiary who makes or attempts to make any inquiry about the will other than those permitted by EPTL 3-3.5 and SCPA 1404 shall forfeit his or her bequest and extinguish any interest that the beneficiary’s issue may have in the estate. If Joseph Singer’s will had an in terrorem clause of this nature, I would be inclined to hold that the examination of the attorney who drafted the prior wills resulted in the forfeiture of Alexander’s bequest.
With these thoughts, I join today’s decision.
*455Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur with Chief Judge Lippman; Judge Graffeo concurs in a separate concurring opinion in which Judges Read and Smith concur.
Order reversed, etc.