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IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT.

In this will construction proceeding, the Third Department determined Surrogate’s Court properly found that the decedent intended to benefit all ten children, including two stepchildren from her husband’s (Warren’s) prior marriage. The will did not anticipate that Warren would die before the decedent. If the laws of intestacy were applied, the two stepchildren would have been excluded. But because decedent’s contrary intent was clear, Surrogate’s Court properly ignored the laws of intestacy:

… [W]hile the residuary clause of the will is silent as to what would happen if decedent outlived Warren, all of her other testamentary dispositions evince the goal of equally dividing her assets among all 10 children, either at the time of her death or Warren’s death. There is nothing in the will to suggest that she intended a contrary result with regard to the residuary estate if Warren died before her, or that she had any interest in excluding petitioner and his sister from that part of her estate. The will implies the contrary and that decedent considered all 10 children as her own, as she named petitioner as one of several trustees in the will and regretted that she could not name all of her “other children” as well. Thus, Surrogate’s Court correctly “g[ave] effect to the expressed general testamentary plan and purpose of the testator” by implying a provision in decedent’s will leaving her residuary estate to all 10 children… . Matter of Warren, 2016 NY Slip Op 06925, 3rd Dept 10-20-16

TRUSTS AND ESTATES (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/WILLS (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/CONSTRUCTION PROCEEDING (WILLS, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)

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