TESTATOR’S WISHES ARE PARAMOUNT

First published in the October 2006 issue of the Suffolk County Women’s Bar Association Newsletter

In the Matter of Michael P. Brignole, 2006 NY Slip Op 06332 (2d Dep’t August 29, 2006), the Second Department affirmed a decision of the Richmond County Surrogate’s Court that directed the transfer of certain real property to the nephew of the testator despite a provision in the Will directing that the termination of the trust created to benefit the testator’s wife for life, “all remaining funds” be given to charity. The New York State Attorney General brought the appeal claiming that the real property at issue was part of the “remaining funds” and should go to charity. In objecting to that interpretation, the nephew relied upon a provision in the Will that provided that “I would like my wife to turn the Farm (Pocono View Farm) in the Poconos to my nephew….”

The Second Department agreed with the nephew’s interpretation of the Will, pointing out that “all rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy,” (Matter of Fabbri, 2 N.Y.2d 236 (1957). The court found that a “sympathetic reading of the entire will” demonstrated that the testator intended to give his wife the authority to take the real property at issue out of the trust created for her benefit and to transfer it to the nephew. While the Attorney General’s interpretation of the Will would have made the testator’s stated wish with respect to his nephew superfluous, the court’s interpretation effectively gave meaning to both provisions in the Will.

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