When reforming a will or trust, the Surrogate’s Court “changes the language of the will [or trust instrument] itself by the addition or deletion of words in an attempt to conform [the instrument] to the decedent’s intent” (Matter of Stahle, NYLJ, Jan. 23, 2002, at 32 [Sur Ct, Onondaga County]).  Historically speaking, courts have been “hesitant to reform wills [and trusts,] unless the reformation effectuates the [testators and grantors’] intent” (Matter of Brill, NYLJ, Aug. 17, 2017, at 23 [Sur Ct, Bronx County]; Matter of Dousmanis, 190 AD3d 548, 549 [1st Dep’t 2021]).

However, when the reformation of a will or trust will result in a settlement of litigation, courts have been less hesitant to reform wills and trust instruments (Marilyn G. Ordover & Charles F. Gibbs, “Correcting Mistakes in Wills and Trusts”, NYLJ, Aug. 6, 1998, at 25).  This is because New York State has a strong public “policy encouraging family settlements” (Matter of Harburg, NYLJ, Aug. 12, 1997, at 26 [Sur Ct, New York County]).  Thus, in cases in which the interested parties have agreed to reform wills or trusts in order to achieve settlements, courts repeatedly have approved of the reformations to which the parties have stipulated (Matter of Schmitt, NYLJ, July 3, 2000, at 1 [Sur Ct, Westchester County]; Matter of Schwartz, NYLJ, Jan. 22, 1992, at 25 [Sur Ct, Westchester County]; Matter of Wilkie, NYLJ, Jan. 17, 1992, at 35 [Sur Ct, Westchester County]).      Continue Reading Creative Writing: Reforming Wills and Trusts to Achieve Settlements

A person who executes a valid agreement to make a testamentary disposition as to a specific item of property is precluded from making an alternative disposition, either during lifetime or upon death. In this blog post, Brian Corrigan discusses Schwartz v Bourque, 2017 NY Slip Op 31621(U) (Sur Ct, Nassau County June 14, 2017), a recent decision involving an agreement to make a testamentary disposition as to a specific parcel of real property, a later agreement between the same parties concerning that property (that was alleged to have superseded the earlier agreement), and a deed transferring that same property which was contrary to the terms of the earlier agreement, but not the later one. In vacating the deed, Surrogate Reilly engaged in a comprehensive analysis of the applicable rules of contract construction, agreements to make testamentary dispositions, the termination of joint tenancies, and the statutory and case law governing fraudulent conveyances.
Continue Reading Surrogate’s Court Sets Aside Fraudulent Conveyance Violative of Contract to Make a Testamentary Disposition