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THE WORDING OF THE WILL RAISED QUESTIONS ABOUT THE INTENT OF THE TESTATOR BECAUSE SEVERAL CHILDREN WERE MISIDENTIFIED AND ONE WAS OMITTED; THE PETITION FOR CONSTRUCTION OF THE WILL SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the wording of the will raised questions about the testator’s intent. Therefore the petition for construction of the will pursuant to SCPA (Surrogate’s Court Procedure Act) section 1420 should not have been denied without a hearing:

“The cardinal rule of construction of a will is to carry out the intent of the testator” … . “All rules of interpretation are subordinated to the requirement that the actual purpose of the testat[or] is sought and effectuated as far as is consonant with principles of law and public policy” … . “Intent is not to be gleaned by focusing upon any one particular word, sentence, or provision; rather, it must be ascertained from a perusal of the entire will by a reader mindful of the particular facts and circumstances under which the provisions of the instrument were framed” … . “The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly” … .

Here, the Surrogate’s Court should not have, in effect, denied the petition and dismissed the proceeding without a hearing … . The allegations in the verified petition, inter alia, that several of the decedent’s children were misidentified in Article THIRD and that Article THIRD contained the word “children” but omitted the name of one of the decedent’s children … , were sufficient to indicate that the testator’s intent was not clear and unambiguous.

Accordingly, the Surrogate’s Court should have held a hearing to give the petitioner the opportunity to submit proof to establish the decedent’s intent … . Matter of Covington, 2026 NY Slip Op 05785, Second Dept 10-7-26

Practice Point: Here the wording of the will raised questions about the testator’s intent. The petition for construction of the will should not have been denied without a hearing at which petitioner could present evidence of the decedent’s intent.

 

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