1. Courts Favor Testacy

A construction proceeding is a court proceeding that occurs in Surrogate’s Court. A construction proceeding can be brought when a testator or trust grantor’s intent cannot be determined from the four corners of the instrument or when the instrument is ambiguous. For example, in a petition for an accounting, a trustee can ask for a construction of a trust clause so the trustee can settle the trustee’s account.

Courts Favor Testacy

When there is a will, a court will favor testacy and there is a presumption against intestacy. In re Winburn’s Will, 265 N.Y. 366 (1934); In re Knickenberg’s Will, 180 Misc. 217, 40 N.Y.S.2d 437 (Sur. Ct., Erie County 1943)).

“[W]e should strive to prevent intestacy,” wrote the Court of Appeals in In re Winburn’s Will. (But the court found partial intestacy in the will at hand because the testator failed to make a complete disposition of part of the residuary.)

  • When the testator’s intent from the whole instrement is certain or inevitable, or can be clearly ascertained, courts will examine not only the expressed language but also any omissions to give effect to the testator’s implied intent, even though it is not directly expressed. Id.
  • But when the testator’s intent is not certain or inevitable in the instrument – i.e., when it is “obscure” – a court will not strain to recognize an implication which it cannot find. Id.