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Residuary clause in a will does not have a beneficiary – Matter of Herceg, 193 Misc.2d 201 (N.Y. Surr. Ct., 2002)


In this case the Surrogate’s Court considered whether to consider extrinsic evidence in order to determine how to interpret the residuary clause in a will.

Decedent Herceg executed a will on December 2, 1999. The executor of the will was Pastorino. It was admitted to probate on August 16, 2001. It included a residuary clause that impacted about 10% of her estate. However, the clause did not name a beneficiary of the residuary.
Pastorino petitioned the court for construction of the residuary clause. She asked the court to find that the residuary clause is the same as the residuary clause in decedent’s prior will dated June 18, 1997 which provided that the residuary go to S. Pastorino. If S. Pastorino did not survive the Herceg, then the residuary would go to C. Pastorino—the executor of the will. S. Pastorino did in fact die before Herceg. If the residuary passed via intestacy, it would go to the decedent’s niece and great nephew. The niece filed a consent to the relief requested by the petitioner and the great nephew did appear on the day of the proceeding.

In support of the petition, the attorney who drafted the will submitted an affidavit stating that some of the lines from the will were accidentally deleted, implying that the clause should have been the same as the prior will.

While the court acknowledges that a mistake was made, the court also noted that it may not be able to simply insert a name to correct the mistake. There is precedent that states that when the name of a beneficiary is missing, it cannot be corrected by construction or reformation. Further, there are also cases that hold that extrinsic evidence cannot be admitted unless there is an ambiguity in the will. The consequence of not allowing extrinsic evidence to be admitted would be that the prior wills cannot be considered and the affidavit of the attorney-draftsperson cannot be considered. On the other hand, the court has long acknowledged that the goal of interpreting a will is to determine the intention of the testator from reading the will as a whole. After reviewing caselaw and legal history, thee court conclude that it would be appropriate to look at all available evidence to determine the intent of the testator.

The court conclude that there is clear and convincing that C. Pastorino is the intended beneficiary of the residuary of the estate of the decedent. Not only did the prior 1997 will name S. Pastorino as the beneficiary of the residuary estate and C. Pastorino as the alternate beneficiary, two other prior wills did as well. This supports the contention of the petitioner that the identical residuary clause was intended to be included in the 1999 will admitted to probate. In addition, there was no evidence that C. Pastorino had fallen out of favor with the decedent and that her name had been deliberately removed from the residuary.

Accordingly, the court finds that the residuary clause of the will of Herceg is construed to insert the name of C. Pastorino as the beneficiary.
In order to minimize the potential for errors in drafting or unclear language, it is important that you work with an experienced New York will lawyer when making a will and executing other types of estate documents. Poor draftsmanship can lead to extended probate, will contests, and estate litigation.

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