A Strong Offense
A Stronger Defense
If you are a lawyer, the following case provides a strict warning against being afflicted with “scrivener’s error” – an inadvertent drafting error that results in a failure of a will or an agreement to accurately reflect the intent of the parties. In Will of Isasi-Diaz, the New York Surrogates’ Court discussed whether a court may resort to extrinsic evidence to correct a scrivener’s error. The Court’s answer is: NO!
The executor of the will in Isasi-Diaz petitioned for a reformation of an article of the will on the grounds that the will was incomplete. Specifically, the executor argued that the testator contemplated the division of her estate into three parts but disposed of only two, devising one-third of her assets to her sister and one-third to her nieces and nephews. The will was silent on how the final third of the estate should be disposed. Thus, absent a reformation of the will, the third portion would pass by intestacy. The affidavit of the attorney-drafter asserted that the testator intended to bequeath the balance of her estate to her five other siblings and that the omission was due to his own scrivener’s error. All parties consented to the petition.
The court, however, did not admit the extrinsic evidence of the attorney’s affidavit. The court laid out the general rule that a court may only consider extrinsic evidence if the will is ambiguous, but found that “[t]he instant will is unambiguous in that testator clearly and unarguably disposed of only a portion of her estate” and the extrinsic evidence is unsupported by testator’s actual words and thus contradicts the terms of the will. The court thus denied the petition for reformation, leaving a bitter pill to swallow for the five siblings and the attorney-draftsman.