Proof of such allegations, regardless of the label given the proceeding in which they might be determined, would necessarily affect the decedent's testamentary scheme, the very heart of what is protected by an in terrorem clause. Further, for example, although the record contains both an "answer" and "objections to probate", the respondents concede that, in proceedings before the Surrogate's Court, both pleadings may serve the same purpose ( see, SCPA 302 [c]; Matter of Herle, 173 Misc. 879). Here, this is made manifest by the fact that the allegations made in support of the objections to probate merely incorporated by reference the allegations of the bill of particulars served in support of the answer ( see, Matter of Scheu, 29 A.D.2d 626 [allegations of undue influence and misrepresentation may be sufficient to establish incompetence to serve under SCPA 707]).
It is a familiar axiom in probate law that a proceeding respecting the probate of a will is a proceeding in rem. ( Matter of Herle, 173 Misc. 879.) To this may be added the requirements of section 144 of the Surrogate's Court Act which make the Surrogate a party, in effect, to every probate proceeding.