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Surrogate’s Court was asked to construct unclear terms in a will.  In re the Estate of Steflik, 9 Misc. 3d 354 (N.Y. Sur. Ct. 2005)


If a New York will contains language that is vague or subject to multiple interpretations, interested parties can initiate probate litigation to request that the Surrogate’s Court  determine how the ambiguous language in the will should be construed. This type of litigation is called a “construction action.” The purpose of will construction is to determine the intent of the testator determined from a sympathetic reading of the will as a whole. The court will avoid looking to extrinsic evident to determine the testator’s intent, but will consider extrinsic evidence submitted by the litigants if necessary.

The decedent owned property at 815 Placek Drive, Johnson City, New York. In her will, she left that property to Michael Steflik. The will also stipulated that if the property at 815 Placek Drive was no longer a part of the estate because she sold it, then she bequeathed 30% of her estate to Michael Steflik.  The also left percentages of her estate to several other different people. Augustine Steflik 15% Theresa Steflik 20% Richard, John, Joseph, Debra Steflik and Mary Louise Furlong 7% each.

At the time of her death, the decedent still owned the property at 815 Placek Drive. Thus, Michael Steflik was entitled to receive that property and was not entitled to received 30% of the other property in the decedent’s estate.  As a result, when all of the percentages were added up, the total was 70% —  not 100%.

The question presented is whether the shares of the beneficiaries totaling 70% of the estate should be increased proportionately to total 100% in order to dispose of the remaining 30% of the estate.

New York courts have reviewed issues where the percentages in a will added up to more than 100%.  The court simply proportionally reduced each beneficiaries shares so that that the totally equaled 100%.

The question in this case was whether the shares of the remaining beneficiaries totaling 70% of the estate should be increased proportionately to total 100%. The court had not addressed this issue before.

In several other cases have held that errors in the shares of the estate can be reduced so as to equal 100%. E.g.  Matter of Vismar, 117 Misc 554 (Sur Ct, NY County 1921) and Matter of Tully, 28 Misc 2d 630 (Sur Ct, NY County 1961). The court did note that courts in other jurisdictions did address the issue where the percentages has to be increased, such as in a California case where the residuary clause provided that three charities were each to receive 25%. The court held that the shares must be increased to one third for each charity. In re Akeley’s Estate, 35 Cal 2d 26, 215 P2d 921 (1950)

Here, the Surrogate’s Court applied the same principal to this case. It did not matter that the percentages in this case must be increased versus decreased. The court concluded that it should reallocate the distributive shares to carry out the clear intent of the testatrix to dispose of her entire estate because it was clear that it was the intent of the testatrix to leave a specific bequest to Michael Steflik of 815 Placek Drive. It was also clear that she intended to dispose the entire residuary estate to specific people in specific percentages.  The court reallocated those percentages as follows: Augustine Steflik 21.43% Theresa Steflik 28.57% Richard, John, Joseph, Debra Steflik and Mary Louise Furlong 10% each.

Further, the court also ordered that since the will also provided that funeral and administration expenses are to be paid from the residue of the estate, they should be paid proportionately from the reallocated shares and not from the specific bequest to Michael Steflik.




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