In re the Estate of Herceg
2002 N.Y. Misc. LEXIS 1268, 193 Misc. 2d 201, 747 N.Y.S.2d 901 (2002)
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Rule of Law:
A court may reform a will to supply the name of a missing residuary beneficiary where there is clear and convincing extrinsic evidence that the omission was a mistake and clearly demonstrates the testator's true intent, particularly to avoid intestacy.
Facts:
- Eugenia Herceg executed a will on December 2, 1999, which was later admitted to probate on August 16, 2001.
- The residuary clause of the 1999 will, representing 10% of the net estate, completely omitted the name of the intended beneficiary.
- Eugenia Herceg had previously executed a will on June 18, 1997, which named her nephew, Sergio Pastorino, as the residuary beneficiary, and if he did not survive her, then his wife, Colomba Pastorino, as the alternate beneficiary.
- Sergio Pastorino died on November 25, 2000, without issue.
- Eugenia Herceg died on November 30, 2000.
- Daniel Gorman, the attorney-draftsperson of the 1999 will, filed an affidavit stating that some lines from the residuary clause were “accidentally deleted” when the 1997 will was redrafted using computer software in 1999.
- Colomba Pastorino was named the alternate executrix in the 1999 will.
- Josephine D’Angelo, a niece who would be an intestate heir, filed a consent acknowledging the omission was a typographical error and supporting Colomba Pastorino as the intended beneficiary.
Procedural Posture:
- Colomba Pastorino, as executrix of the will of Eugenia Herceg, petitioned the Surrogate's Court for construction of the will's residuary clause.
- Josephine D’Angelo, a niece and one of the persons who would take the decedent’s estate in intestacy, filed a consent to the relief requested in the petition.
- Sergio Rossello, a great-nephew who would also take the decedent’s estate in intestacy, defaulted in appearing on the return day of the proceeding.
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Issue:
Does a court have the authority to supply the name of a missing residuary beneficiary in a will when clear and convincing extrinsic evidence demonstrates the testator's intent and that the omission was a mistake, especially to avoid intestacy?
Opinions:
Majority - Eugene E. Peckham, S.
Yes, a court has the authority to supply the name of a missing residuary beneficiary in a will when clear and convincing extrinsic evidence demonstrates the testator's intent and that the omission was a mistake. The court acknowledges the conflict between prior precedent that disallowed supplying missing names or admitting extrinsic evidence without ambiguity, and the paramount objective of effectuating the testator's intent and avoiding intestacy. Referencing Chief Judge Cardozo's guidance on resolving conflicting precedents, the court notes a shift in the law, aligning with the Restatement (Third) of Property (Donative Transfers) § 12.1, which allows for reformation of a donative document if a mistake and the donor's intention are established by clear and convincing evidence. New York courts have already moved in this direction by correcting mutual mistakes (Matter of Snide) and supplying omitted language due to typographical errors (Matter of Dorson, Matter of Hahn), as well as correcting misnamed beneficiaries (Matter of Tracey, Matter of Righi). The court determines that while supplying a completely missing name is a significant step, it is a logical extension to achieve the dominant purpose of carrying out the testator's intention by considering all available evidence. The evidence here is found to be clear and convincing: Eugenia's prior 1997, 1992, and 1990 wills contained identical residuary clauses naming Sergio Pastorino or, if he predeceased, Colomba Pastorino. Colomba Pastorino was also named as the alternate executrix in the 1999 will. Furthermore, the attorney-draftsperson's affidavit confirmed the accidental deletion, and the consent of an intestate heir, Josephine D’Angelo, supported Colomba as the intended beneficiary. This conclusion is buttressed by the strong presumption against intestacy, especially concerning the residuary estate. Therefore, the court construes the residuary clause of Eugenia Herceg's will to insert Colomba Pastorino as the beneficiary, as Sergio Pastorino had predeceased.
Analysis:
This case marks a significant evolution in New York's approach to will construction, shifting away from rigid adherence to the 'four corners' doctrine and prior precedents that disallowed supplying missing beneficiaries. By explicitly embracing the 'clear and convincing evidence' standard for reformation and allowing broad extrinsic evidence, it harmonizes New York law with the modern trend exemplified by the Restatement (Third) of Property. The decision prioritizes the testator's true intent and the strong presumption against intestacy, particularly for residuary estates, over strict formalism. This ruling provides greater judicial flexibility to correct provable scrivener's errors and omissions, thereby preventing unintended distributions and potential unjust enrichment, while maintaining safeguards against fraud through the high evidentiary standard.
