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Reformation of Last Wills- Changing a Will After Death

REFORMING a Last Will and Testament is much more difficult than CHANGING your Last Will and Testament. Semantics, you may say. However, legally speaking, there is a tremendous difference. At any time, a testator of sound mind and understanding, can visit their attorney and make changes to their Last Will and Testament or re-do their Will in its entirety to better reflect their wishes. Reforming a Last Will and Testament can only occur after the testator has died and involves a proceeding before the Surrogate’s Court.

Generally, 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. However, as the courts repeatedly state, 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

Example:Sally of Smithtown, NY made her Last Will & Testament in 2000. After her death, the Will was admitted to probate in 2011. A testamentary trust established under the Will was for the benefit of her grandnieces and grandnephews. A share was to be given to each beneficiary outright upon their reaching the age of 25. At Sally’s death, eleven total beneficiaries existed and four of them were under age 25. Sally’s Will explicitly denied the trustees the authority to “invade or pay out the principal and or interest of the trust” until the beneficiary reached age 25. Her Will also directed that if any beneficiary died before the age of 25, that beneficiary’s share was to be divided evenly among the other beneficiaries. 

The executor, trustees, beneficiaries, and parents of the minor beneficiaries of the trust asked the court to reform the trust to: (1) allow the Trustees the power to invade trust principal where now there is none; (2) reduce the age at which the current beneficiaries receive distribution of their shares of the trust, and thus accelerate the trust’s termination.

The Surrogate’s Court denied the reformation request stating the following:

  • The argument that Sally merely “sought to limit beneficiaries’ direct access to funds” is an understatement, at best. The Will barred any invasion of the trust principal and further evidenced Sally’s intent that the trust remain intact, as it precludes beneficiaries from borrowing against their interests prior to receiving their share at age 25. Sally clearly desired that the trust not be accessed by or for the beneficiaries in any way until the designated age has been reached, at which point beneficiaries are to receive their share outright.
  • Sally’s Will mentions the 25 year age requirement four times. It thus appears that Sally clearly intended that any and all distributions occur at the age of 25, and not before. The arguments that Sally could not have contemplated the maturity of the beneficiaries at the time she wrote her will in the year 2000, and that there is no difference between distribution at age 25 versus age 21 are unpersuasive. 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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