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Court Finds Clear Error in Will


This is a matter involving the estate of Eugenia C. Herceg who is deceased. The petitioner is represented by the law firm of Levene, Gouldin & Thomas, with John H. Hartman for counsel.

Case Background

In the will of Eugenia Herceg there is a residuary clause that is dated the second of December, 1999. This clause states that at the time of her death all of the rest of her personal and real property the same will situate. There is no name of a beneficiary given. In all practicality, this residuary clause only refers to 10% of her estate as the other 90% of the estate is bequeathed to others.

The executrix of the will, Colomba Pastorino has petitioned for the construction of the will to have the residuary clause to read the same as the clause from the will that was written in 1997. A New York Injury Lawyer said the 1997 will left this portion of the estate to the decedent’s nephew, Sergio Pastorino and in the event of Sergio Pastorino passing before her the portion would go to his wife, Colomba Pastorino.

Sergio Pastorino died just before the decedent. This means that the person who would take the estate intestacy would be her niece Josephine D’Angelo and her great nephew, Sergio Rossello. Josephine D’Angelo has filed consent in the matter and Sergio Rossello has defaulted.

The attorney and draftsperson of the will states that when the will was redrafted in 1999 a computer was used and there were some lines of the residuary clause that were deleted accidentally.

Court Discussion and Decision

It is obvious that there has been a mistake made in this manner. The question is how to correct this mistake. NYC Probate Lawyers said the court feels that the testator had intended the residuary beneficiary of the estate to be Colomba Pastorino, the wife of the decedent’s nephew. It is believed that her name should have been inserted into the will.

The issue in a case such as this is that when the name of the beneficiary is missing and cannot be supplied by reconstructing the will it is difficult to know who the proper recipient should be. In essence this causes the will to have to be interpreted to determine the intention of the testator. The issue in this case is that the court is not supposed to supply information that the testator has not, whether there is extensive evidence to support it or not. The second line of the law comes to the conclusion that everything possible should be done in order to avoid intestacy and to act out the last wishes of the testator.

Long Island Probate Lawyers said there is a substantial amount of evidence to support that the residuary beneficiary was in fact Colombo Pastorino. This evidence includes the fact that Colombo was named as the alternate executrix of the will, which proves that she had not fallen out of grace with the decedent. The consent of the niece states that she realizes that it was a mistake for the name to be left out of the will and she feels that her aunt intended to name Sergio or Colombo as the residuary beneficiary. For these reasons, the court has determined that the residuary beneficiary in the case is Colombo as Sergio preceded the decedent in death.

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