## Facts

- Eugenia Herceg executed a will in 1997 leaving the residuary estate to her nephew, Sergio Pastorino, with a gift-over to his wife, Columba Pastorino, if Sergio predeceased.
- On December 2, 1999, Herceg executed a new will containing standard residuary clause language but, as executed, it omitted any named residuary beneficiary.
- The attorney-draftsperson submitted an affidavit stating that Herceg’s express intention was to keep the residuary distribution the same as in the 1997 will and that a software/printing error caused the omission.
- Sergio Pastorino died on November 25, 2000 without issue; Herceg died on November 30, 2000.
- If the 1999 residuary clause were treated as lacking a beneficiary, the residuary would pass by intestacy to other relatives, including a niece, Josephine D’Angelo, and a great-nephew.
- D’Angelo provided written consent acknowledging the omission was typographical and that Herceg intended Sergio, or Columba if Sergio was deceased, to take the residuary.
- The will otherwise disposed of about 90% of the estate through percentage bequests, leaving roughly 10% as the residuary.

## Issues

1. Whether the Surrogate’s Court may construe a residuary clause to supply an omitted beneficiary name when the omission resulted from a drafting error.
2. Whether extrinsic evidence may be used to establish the testator’s intent to fill the omission, and if so, what standard of proof applies.
3. Whether the presumption against intestacy supports inserting the omitted residuary beneficiary to prevent intestate distribution of the residue.

## Decision

- The court granted the petition to construe the 1999 will’s residuary clause.
- The court found the missing residuary beneficiary name resulted from a typographical/drafting error.
- Applying a clear and convincing evidence standard, the court determined Herceg intended the residuary to pass under the same plan as the 1997 will.
- Because Sergio predeceased Herceg, the court construed the 1999 residuary clause to insert Columba Pastorino as the residuary beneficiary.

## Legal Principles

- A court construing a will seeks to effectuate the testator’s intent and, where reasonably supported, to avoid intestacy.
- Modern New York surrogate practice permits consideration of extrinsic evidence to correct a clerical or drafting mistake in a will when the testator’s actual intent is proved by clear and convincing evidence.
- When a residuary clause appears in a will but omits the beneficiary due to mistake, the court may, by construction, supply the omitted beneficiary consistent with proven intent, including by reference to a prior will’s consistent dispositive scheme.

## Conclusion

The Surrogate’s Court held that clear and convincing extrinsic evidence established a drafting error and Herceg’s intent to continue her prior residuary plan, and it therefore construed the 1999 will to name Columba Pastorino as residuary beneficiary to prevent intestate distribution of the residue.


In re Estate of Herceg, 193 Misc. 2d 201, 747 N.Y.S.2d 901 (Sur. Ct. Broome Cnty. 2002)