There is an art to writing so that folks understand exactly what you mean to say and not everyone has that talent. Lawyers included. Just because an attorney has drafted a will does not mean that he or she has done a good enough job to resolve all questions as to what its maker has intended. Consider that the maker is the one person who can give us the best idea as to the aim of the will —-and he or she is dead.

Section 1420 of the New York Surrogate’s Court Procedure Act provides that a person interested in the will may petition the court to “determine the validity, construction or effect of any provision of a will”. This is an invaluable tool which may be used to obtain a determination as to the meaning of any portion of the will which can serve to define and explain an ambiguity or question arising out of faulty draftsmanship. A will construction proceeding may be commenced before a will is offered for probate. It is therefore possible to have a court interpret and construe a will early on. This enables parties interested in a will to resolve serious questions about the meaning of a provision in the will soon enough to save both considerable sums of money and a great deal of emotional wear and tear.

Section 1420 is copied below for your further information.

SCPA § 1420. Proceeding for construction of will; effect of decree

1. A fiduciary or a person interested in obtaining a determination as to the validity, construction or effect of any provision of a will may present to the court in which the will was probated a petition showing the interest of the petitioner, the names and post-office addresses of the other persons interested, the particular portion of the will concerning which petitioner requests the determination of the court and the necessity for construction. If the application be entertained process shall issue to all persons interested in the question to be presented to show cause why the determination should not be made. On the return of process the court shall take such proof and shall make such decree as justice requires.

2. If in any proceeding for the judicial settlement of an account of a fiduciary any question is presented by any party to the proceeding respecting the propriety of any debit or credit in the account, the determination of which involves the validity, construction or effect of any portion of the will which requires such construction the presentation of the question shall have the same effect as if the petition had expressly requested a construction of the particular portion of the will involved in such determination.

3. If a party in a proceeding for the probate of a will requests a determination of the validity, construction or effect of any provision contained in the will process shall issue to all persons interested in the determination who have not appeared in the proceeding and notice shall be given in such manner as directed by the court to all those persons who have so appeared therein. Upon the entry of a decree admitting the will to probate the court may determine the question of construction or in its discretion may admit the will to probate and reserve the question for future consideration and decree.

4. A decree in any proceeding authorized in this section or a decree settling an account of a fiduciary or a decree on probate which construes or interprets any portion of a will, unless reversed or modified on appeal, shall thereafter be binding and conclusive in all courts upon all parties to the proceeding and upon their successors in interest as to all questions of construction or interpretation of the will therein or thereby determined and of all rights and obligations of the parties involved in the construction, depending thereon, or resulting therefrom.

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