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Court construed the will to contain missing terms that were crucial. In the Matter of the Estate of Eugenia Herceg, 193 Misc.2d 201 (2002)


When crucial terms are missing from a will, a court may construe the will to contain those terms if clear and convincing evidence establishes the testator’s intent.

Eugenia Herceg died leaving a will, executed on December 2, 1999. The executor of the will was Columba Pastorino. The will included a residuary clause.

“All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and wheresoever the same may be situate.”

The residuary clause did not name the intended beneficiary. The attorney who drafted the will explained that the drafting software apparently failed to print the beneficiary’s name. The executor petitioned the Surrogate’ Court, Broome County, to have the residuary clause construed as naming Herceg’s nephew, Sergio Pastorino, as beneficiary. The nephew had been named residuary beneficiary in Herceg’s previous will, which was executed in 1997.

“All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and wheresoever the same may be situate ․ I give, devise and bequeath to my nephew, Sergio Pastorino, per stirpes.   In the event that my nephew, Sergio Pastorino, does not survive me, his share shall go to his wife, Colomba Pastorino.”

The nephew died before Herceg, and under the 1997 will Columba Pastorino succeeded the nephew as Herceg’s beneficiary. Herceg’s niece, who would have been one of the beneficiaries under the law of intestacy, supported Columba Pastorino’s petition that the court construe the clause Sergio Pastorino as beneficiary

In considering Pastorino’s petition, the Surrogate’s Court faced had to decide whether to base its decision on the precedential rule that a court should not supply names of beneficiaries that are missing from a will (see Brown v. Quintard, 177 N.Y. 75, 69 N.E. 225 (1903)), or on the rule that a court should seek to ascertain the testator’s intention so as to avoid intestacy.

Older cases held that a court may not supply missing beneficiary names. However, in recent decades courts have taken a more broad-minded approach in the interest of avoiding intestacy. Recently courts have considered any available evidence to establish the testator’s intent. The evidence must be clear and convincing, and it is insufficient to show the testator’s intent by a mere preponderance of the evidence.

The court was persuaded that the evidence is clear and convincing that Colomba Pastorino was the intended beneficiary of the residuary of the estate of Eugenia Herceg.   The previous 1997 will provides for the residuary to pass to decedent’s nephew, Sergio Pastorino. Additionally, two other prior wills dated October 1, 1992 and August 6, 1990, contain an identical residuary clause.This supports the contention of the petition that the identical residuary clause was intended to be included in the 1999 will admitted to probate.

Moreover, Herceg’s niece, who would have been a beneficiary under the law of intestacy, disclaimed her rights under that law and supported Pastorino’s petition. Given such clear and convincing evidence that Herceg wished Columba Pastorino to be her residuary beneficiary, the court presumes the crucial missing language in the will would have named Pastorino as beneficiary. Pastorino’s petition is granted.


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