IN RE: Robert COVINGTON (2026)

DECISION & ORDER

In a probate proceeding in which Suzette Boozer petitioned pursuant to SCPA 1420 for the construction of a will, Suzette Boozer appeals from an order of the Surrogate's Court, Kings County (Bernard J. Graham, S.), dated January 27, 2025.  The order, in effect, denied, without a hearing, the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Kings County, for further proceedings in accordance herewith.

Robert Covington (hereinafter the decedent) allegedly died in October 2009, and his will was admitted to probate without objection in March 2011.  Article THIRD of the will provided, in pertinent part, that the residue of the decedent's estate “be divided equally among my children, [five named individuals], share and share alike.”  The petitioner, who alleges she is the decedent's daughter, was not listed in Article THIRD.  The petitioner commenced a proceeding pursuant to SCPA 1420 for a construction of the decedent's will, alleging that she was unintentionally excluded from the list of the decedent's children as a result of a scrivener's error.  In an order dated January 27, 2025, the Surrogate's Court, without a hearing, in effect, denied the petition and dismissed the proceeding.  The petitioner appeals.

“The cardinal rule of construction of a will is to carry out the intent of the testator” (Matter of Guide, 302 A.D.2d 387, 388;  see Matter of Sochurek, 174 AD3d 908, 910).  “All rules of interpretation are subordinated to the requirement that the actual purpose of the testat[or] is sought and effectuated as far as is consonant with principles of law and public policy” (Matter of Guide, 302 A.D.2d at 388;  see Matter of Levine, 136 AD3d 920, 921).  “Intent is not to be gleaned by focusing upon any one particular word, sentence, or provision;  rather, it must be ascertained from a perusal of the entire will by a reader mindful of the particular facts and circumstances under which the provisions of the instrument were framed” (Matter of Guide, 302 A.D.2d at 388 [internal quotation marks omitted];  see Matter of Levine, 136 AD3d at 921).  “The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly” (Matter of Pettit, 241 App.Div. 209, 211;  see Matter of Knight, 196 AD 355, 358).

Here, the Surrogate's Court should not have, in effect, denied the petition and dismissed the proceeding without a hearing (see Williams v. Williams, 36 AD3d 693, 695).  The allegations in the verified petition, inter alia, that several of the decedent's children were misidentified in Article THIRD and that Article THIRD contained the word “children” but omitted the name of one of the decedent's children (see Hoppock v. Tucker, 59 N.Y.202, 208), were sufficient to indicate that the testator's intent was not clear and unambiguous.

Accordingly, the Surrogate's Court should have held a hearing to give the petitioner the opportunity to submit proof to establish the decedent's intent (see Williams v. Williams, 36 AD3d at 695).

DUFFY, J.P., CHRISTOPHER, LANDICINO and QUIRK, JJ., concur.