Criterios de exclusión

§ 3.22 Checklist for Interpreting Will Provisions Through Construction Proceeding

M Consider requesting construction of Will that contains ambiguity which necessitates clarification. SCPA § 1420.

See § 3.24 below.

M Initiate construction proceeding by filing petition and giving notice in the following situations: See § 3.25 below.

At any time after will admitted to probate, on behalf of fiduciaries named in Will or interested person;

Within proceeding to judicially settle an account; or Within probate proceeding.

§ 3.23 Obtaining Jurisdiction of Surrogate’s Court to Construe Will

A construction proceeding is a proceeding involving the con-struction, validity, or effect of any provision of a Will. See SCPA

§ 1420. It may involve an interpretation of ambiguous or confusing terms used by the testator or the legal effect of such terms.

SCPA § 1420 supplements the general jurisdiction of the Surro-gate’s Court over matters relating to the estates and affairs of decedents by providing an independent proceeding for the construc-tion of a Will. However, the construcconstruc-tion of a Will need not be a separately initiated proceeding. The court has the power to construe the provisions of a Will whenever necessary, whether or not a construction is specifically requested. See In re Axe, 89 Misc.

2d 86, 390 N.Y.S.2d 378 (Sur. Ct. Westchester County 1976) (construction permissible in an accounting proceeding even though not originally requested).

Strategic Point: A practitioner may also use the proce-dural provisions of SCPA § 1420 as a guide in a miscella-neous proceeding for the reformation of a Will, which

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differs from a construction proceeding in that it seeks to add or change provisions of the Will, generally for tax reasons.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 187.01–187.05.

● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1420.01, 1420.05.

● New York Practice Guide: Probate and Estate Administra-tion § 24.01.

§ 3.24 Determining If Construction May Be Made A construction may be made at any time during the administra-tion of an estate or after settlement of the fiduciary’s account so long as the following factors are present:

1. The Will must be proven and admitted to probate; see SCPA

§ 1420(3);

2. There must be an ambiguity as to the intent of the testator, arising out of the language of the Will when read in its natural and common sense; see In re Daly, N.Y.L.J., July 1, 1997, p. 35. (Sur. Ct. Richmond County); and

3. There must be a present necessity for construction; see In re Lord, 38 Misc. 2d 7, 237 N.Y.S.2d 356 (Sur. Ct. West-chester County 1962).

The Surrogate may refuse to entertain an application for a construc-tion proceeding if the proceeding is unnecessary or not timely. See SCPA § 1420(1); see also In re Helfgott, N.Y.L.J., June 1, 1973, p. 20 (Sur. Ct. Kings County) (construction not timely).

Strategic Point: If the Will contains an in terrorem clause, the bringing of, or joining in, a construction proceeding will not result in the forfeiture of a benefit under the Will.

See EPTL § 3-3.5(b)(3)(E).

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§ 3.24

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts § 187.05.

● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1420.01, 1420.05.

● New York Practice Guide: Probate and Estate Administra-tion §§ 24.01, 24.03.

§ 3.25 Bringing Contruction Proceeding [1] Initiating Construction Proceeding

A construction proceeding may be initiated in the court where the Will was probated in one of the following manners:

1. At any time, by the petition of a fiduciary named in the Will or other interested person showing the interest of the petitioner, the names and addresses of other interested parties, the part of the Will at issue, and the reason why a construction is necessary; see SCPA § 1420(1);

2. Within a proceeding to judicially settle an account, by any party’s presentation of a question as to the account that requires the construction of any part of the Will, whether or not an express request for construction is made in the pleadings; see SCPA § 1420(2); or

3. Within a probate proceeding, by the request of any party made either in the probate petition or in an answer to the petition; see SCPA § 1420(3).

Normally, a Will cannot be construed until it has been admitted to probate. However, SCPA § 1420(3) permits the court to con-strue the provisions of a Will within the probate proceeding where appropriate, such as to determine whether conduct would be in violation of a Will’s in terrorem clause. See In re Grupp, 160 Misc.

2d 407, 609 N.Y.S.2d 555 (Sur. Ct. Erie County 1994) (prior to admission of Will to probate, court construed provisions of in terrorem clause to be inapplicable to charitable residuary beneficiaries).

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts § 187.05.

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● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1420.02, 1420.03, 1420.04.

● New York Practice Guide: Probate and Estate Administra-tion § 24.03.

[2] Giving Notice

In a construction proceeding initiated by petition, a citation must issue to all persons interested in the question to be presented. See SCPA § 1420(1).

If a construction arises in an accounting proceeding, no supple-mental citation or notice of any kind is given to anyone previously cited in the accounting proceeding. However, any interested party not previously cited must receive a citation. All parties are bound irrespective of their appearance in the accounting proceeding or knowledge of the fact that a construction took place. See In re Axe, 89 Misc. 2d 86, 390 N.Y.S.2d 378 (Sur. Ct. Westchester County 1976) (denying distributee’s motion to vacate executor’s account-ing decree).

In a probate proceeding in which a request is made to construe a portion of the Will, a citation must issue to all persons interested in the determination who have not yet appeared. Also, notice must be given to those who have already appeared in such manner as the court shall direct. See SCPA § 1420(3).

The provisions of SCPA § 315 regarding virtual representation apply to a construction proceeding. See SCPA § 1420(5).

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts § 187.05.

● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1420.02, 1420.03, 1420.04.

● New York Practice Guide: Probate and Estate Administra-tion § 24.03.

● See Ch. 2 above (pleadings, process and virtual representation).

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§ 3.25[2]

[3] Determining Choice of Law

A Will construction is generally governed by the law of the decedent’s domicile, except regarding the construction of provi-sions governing real property and powers of appointment. See EPTL § 3-5.1(b)(2). In the case of real property, the law of the situs of the real property controls. See EPTL § 3-5.1(b)(1). The applicable choice of law in a proceeding involving the construction of a power of appointment is governed by EPTL § 3-5.1(g) and depends on the type of power of appointment and in what manner it was created and exercised.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts § 187.05.

● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶ 1420.01.

● New York Practice Guide: Probate and Estate Administra-tion § 24.04.

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PART G: DETERMINING VALIDITY OF