Court Bonds

Reforming Wills and Trusts?


Yes, courts can make changes to a will or trust. However, typically, they are hesitant to do so, in an effort to maintain the integrity of the intentions reflected in them. Nonetheless, reformation can be used strategically, especially if it can lead to resolution of complex and divisive litigation among beneficiaries and relations.


Family Settlement Vs Prolonged Litigation?

Historically, courts have been reluctant to make changes to the will or trust created by a decedent. However, legal practitioners are pointing to a trend in which courts are more willing to consider reformation of wills and trusts, when the adjustments serve to solve family dilemmas and conflicts:


The foundational principle in the reformation of wills and trusts is the accurate reflection of the deceased’s intent. Courts typically intervene only to correct clear discrepancies between the written instruments and the decedent’s intentions, as established in cases like Matter of Stahle and Matter of Brill. Historical hesitance to reform is rooted in the need to preserve the integrity of the decedent’s final wishes, avoiding judicial misinterpretation or overreach….Contrary to traditional hesitancy, there is a distinct trend where courts show a readiness to reform wills and trusts if it aids in achieving settlements among disputing parties. This shift is largely influenced by a broader public policy that favors family settlements and the resolution of disputes outside of prolonged litigation.Notable cases such as Matter of Schmitt and Matter of Schwartz exemplify courts approving stipulated reformations, thus avoiding potentially divisive litigation.


The strategic use of will and trust reformation can prove particularly useful for families struggling with the unintended consequences of an estate plan. In New York, for example, consider the decision of Nassau County Surrogate Margaret C. Reilly in Matter of Johnson  (Matter of Johnson, File No. 2015-383093/A, Decision and Order, dated June 29, 2022 [Sur Ct, Nassau County]):


The trustee of a lifetime trust sought to invalidate an amendment to a trust instrument (id.).  After years of discovery and extensive motion practice, the parties to the proceeding commenced a hearing concerning the trust amendment’s validity (id.).  On the third day of the hearing, the parties entered into a settlement that provided for: (a) the trust amendment to be declared null and void; and (b) the original trust agreement to be reformed to provide for the share of one of the trust’s beneficiaries to be held in a continuing supplemental needs trust (id.).  The proposed reformation would ensure that the beneficiary in question (who previously had defended the trust amendment’s validity) would remain eligible to receive governmental assistance, despite the fact that she was a trust beneficiary (id.).  Surrogate Reilly granted the parties’ request to reform the original trust instrument in order achieve a settlement of the underlying litigation (id.).


Good To Know

In some states, including New York, the public process of overseeing the orderly payment of debt and distribution of assets upon death–aka probate–is overseen by a county Surrogate’s Court. Though there is nothing inherently wrong with the probate process, assets cannot be distributed until the process is complete. In New York State, probate proceedings typically require a minimum of seven months. Complications and litigation result in further delays, which can take a real toll on families.


During surrogate and probate proceedings, it is common for judges to require a type of fiduciary bond, known as a surrogate or probate bond. Essentially, surrogate and probate bonds protect the interests of the estate and its beneficiaries in accordance with state law until the affairs of the deceased are settled. To help families in New York–and every state in the country–navigate probate and surrogate proceedings, Colonial Surety makes it easy and speedy to obtain probate, surrogate, estate and all other types of fiduciary bonds.


Probate and Estate Law Practice?

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