A recent decision of New York State’s Third Appellate Division reversed the Albany County Surrogate in the Matter of the Estate of Frederick A. Scale 830N.Y.S.2d 618(A.D. 3 Dept 2007). It was determined that the lower court had wrongfully relied upon the affidavit of a will drafter rather than looking to the testator’s true intent as to which charitable organization he wished to have benefit from his estate.
Here, the testator wished to make a bequest to the state Audubon Society but, in doing so, “Inc” was not included in his designation of who was to receive 10% of his residuary estate. It was claimed that this created a latent ambiguity which would allow the court to admit extrinsic evidence to determine the testator’s true intent. This ultimately led the court to determine that it was the national organization and not the state organization which was the intended beneficiary.
The error which led to this confusion was actually an error in draftsmanship and not any ambiguity resulting from any act of the testator. In reversing the surrogate, the appellate court notes that “in a will construction proceeding, the search is for the decedent’s intent and not for that of the draft(er)."Evidently, the lower court relied upon the testimony of the will drafter that the testator wished to make a bequest to the national organization of the charity even though there was an unequivocal statement from the testator that his aim was to make the donation to the state organization.