In a contested probate proceeding, the Objectant appeal from a decree of the Surrogate’s Court, Kings County and dated March 17, 1993, which, after a nonjury trial, inter alia, granted probate of a certain will signed by the testator on March 17, 1987. Also, the Objectant raises the issue that in case the probate is granted, construction must be made in some of the provision of the will.
After trial on the issue of denial of probate of the will, the court ordered for its denial. The Court explained that, there was no evidence of a meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character see, EPTL 3-2.1[a]; see also, Matter of Pulvermacher, 305 N.Y. 378, 383, 113 N.E.2d 525; Matter of Turell, 166 N.Y. 330, 337, 59 N.E. 910).
The courts commonly say that where will construction is at issue, they will first consider the decedent’s intent, which can be derived from reading the will and considering the circumstances from which it was created 11 Warren Heaton’s on Surrogate Court Practice 187.01 [a] (7th ed Mathew Bender).
On the issue of construction, assuming that the will is admitted probate, the Court made the following pronouncements:
‘The Objectant also advances the issue that the will must be denied probate because the will directs that the residuary estate be given to the testator’s wife, Mrs. W, and in the event of a common disaster, to Ms. BB, the testator’s daughter. Mrs. W’s death occurred prior to the testator’s but the will contains no provision to cover this contingency. The disposition of the estate is further complicated by the following paragraph of the will: ‘FIFTH: I have not mentioned my son E in this Will because he is completely paralyzed and is unable to take care of himself, and after the death of myself and my wife, my daughter has promised to take care of my son E, and I know she will keep her promise.’
The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. If a ‘general scheme’ be found, it is the duty of the courts to carry out the testator’s purpose, notwithstanding that ‘general rules of interpretation’ might point to a different result.
In Matter of D’Allesandro, 55 Misc.2d 909, 286 N.Y.S.2d 914 (Surr. Ct., Kings Co., 1968) the will similarly did not provide for the contingency that ensued. The court stated in the said case that: ‘There are many instances in which a testamentary disposition, made in a contingency which is provided for but did not occur, is held to apply by necessary implication to a contingency which did occur although not provided for in the will.’
The guardian ad litem of the son, E, contends in his report that, since the will does not cover the present situation, the testator should be declared to have died intestate. However, a finding of intestacy will result in exactly a situation which the testator expressly sought to avoid, namely, that his son receive a direct share of his estate. The language of paragraph fifth does not impose any legally binding condition on the daughter but is held merely precatory in nature (Matter of Warren, 11 N.Y.2d 463, 230 N.Y.S.2d 711, 184 N.E.2d 304). The will is construed as intending a gift by implication to the daughter of the residuary estate absolutely.
Finally, the court has received affidavits relating to the competency of one of the attesting witnesses. An accompanying letter signed by the witness’ wife verifies the signature on the will as that of her husband’s. Pursuant to SCPA 1405, the court will admit the will to probate on the strength of this verification and the testimony of the remaining witness.
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