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Reformation of Last Wills – Changing a Will After Death – Part 4

As discussed in the previous postings, reformation involves removing or adding language to a Last Will and Testament or a Trust created under a Last Will and Testament (a Testamentary Trust), due to a mistake, oversight, or error, to better match the Last Will or the Testamentary Trust to the testator’s intentions.

Courts repeatedly state that they are generally loathe to reform testamentary instruments and, as a rule, will not, unless reformation effectuates the testator’s intent. i  When construing a will, the testator’s intent is to be gleaned from a sympathetic reading of the instrument in its entirety and not from a single word or phrase. ii  It is of paramount importance that the testator’s actual purpose be determined and effectuated to the extent it comports with the law and public policy. iii When the testator gives clear directions courts are to carry out the directions, not add to, or take from them. iv

A common situation where beneficiaries seek reformation for a mistake concerns simultaneous execution of wills by two testators, usually husband and wife. At the execution ceremony, through some error, each is given and signs the will drafted for the other.

Example:Harvey of Hauppauge, NY, and his wife, Rose, executed wills at a common execution ceremony, and each executed by mistake the will intended for the other. The required formalities of execution were followed and there was no question of Harvey’s testamentary capacity, or his intention and belief that he was signing his last will and testament. Except for the obvious differences in the names and beneficiaries on the wills, they were in all other respects identical.

The Court decided in favor of reformation and admitted the Will to probate.

The Court stated that it was a case of a genuine mistake. It occurred through the presentment of the wills to Harvey and Rose in envelopes, with the envelope marked for each containing the will intended for the other. The attorney, the attesting witnesses, and Harvey and Rose, all proceeding with the execution ceremony without anyone taking care to read the front pages, or even the attestation clauses of the wills, either of which would have indicated the error.

Although Harvey mistakenly signed the will prepared for his wife, it is significant that the dispositive provisions in both wills, except for the names, were identical. Moreover, the significance of the only variance between the two instruments is fully explained by consideration of the documents together, as well as in the undisputed surrounding circumstances. The instrument in question was undoubtedly genuine, and it was executed in the manner required by the statute. Under these circumstances it was properly admitted to probate. v 

To be continued….

Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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