In the recent csae Will of Isasi-Diaz, the New York Surrogates’ Court discussed whether extrinsic evidence could be used to correct a scrivener’s error.

The executor of a will petitioned for a reformation of an article, alleging the will was otherwise incomplete.  The will disposed of two thirds of the testator’s estate and devised the remainder of her assets to her sister and one-third to her nieces and nephews, thereby leaving one-third of her estate unaddressed.  Absent a reformation of the will, the third portion would pass by intestacy. The attorney-drafter submitted an affidavit stating the testator’s intent, and attributing the omission to his own scrivener’s error.  All parties consented to the petition.

However, the court did not admit the attorney’s affidavit into evidence, relying on the general rule that a court may only consider extrinsic evidence if a will is ambiguous.  In so doing, it found that the will was unambiguous, as the testator “clearly and unarguably disposed of only a portion of her estate,” and the extrinsic evidence was not supported by her actual words.  Therefore, it contradicted the terms of the will.

See David Kasakove & Heather Rogers, “1/3 + 1/3 = 3/3: Extrinsic Evidence and Ambiguity in a Will,” BryanCaveFiduciaryLitigation.com (Jun. 19, 2014).

Posted by Morgan Yuan, Esq., Associate Editor, Wealth Strategies Journal.