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
The New York State legislature has recognized the need for change to instruments in appropriate circumstances and has responded by enacting and expanding the “decanting” statute which permits trustees of irrevocable trusts to appoint trust property in favor of another trust. As one would pour liquid from one container to another, a trustee can, under the right circumstances, pour trust assets from one trust to another trust with different terms.
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.