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Coming to Terms with the Uniform Probate Code's Reformation of Wills

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Coming to Terms with the Uniform Probate Code's Reformation of Wills University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2012 Coming to Terms with the Uniform Probate Code's Reformation of Wills Wayne M. Gazur University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Estates and Trusts Commons, and the Evidence Commons Citation Information Wayne M. Gazur, Coming to Terms with the Uniform Probate Code's Reformation of Wills, 64 S.C. L. REV 403 (2012), available at https://scholar.law.colorado.edu/articles/740. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 64 S. C. L. Rev. 403 2012-2013 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Feb 28 11:04:51 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information COMING TO TERMS WITH THE UNIFORM PROBATE CODE'S REFORMATION OF WILLS Wayne M. Gazur* . INTRODUCTION ..................................................... 403 11. THE PLAIN MEANING RULE ........................................ 405 111. No REFORMATION RULE..................... ............. 409 IV. THE FUNDAMENTALS OF UPC SECTION 2-805.............. ..... 409 V. PLACING UPC SECTION 2-805 IN PERSPECTIVE .................... 412 VI. INTERACTIONS WITH OTHER SECTIONS OF THE UPC ........ ......... 414 VII. INTERACTIONS WITH THE AMBIGUITY DOCTRINE ................... 416 VIII. A NEW ERA OF ESTATE LITIGATION? .. .. .. .. 419 IX. LIMITING THE JURY'S ROLE IN REFORMATION ......... ............ 424 X. PROTECTING THE TESTATOR'S PREROGATIVE ......... ............. 426 XI. CONCLUSION ................................................ ...... 427 1. INTRODUCTION With little fanfare. the 2008 amendments to the Uniform Probate Code (UPC) adopted the doctrine of reformation in the context of wills, as well as *Professor of Law, University of Colorado Law School. I am grateful for the comments on an early draft of this work provided by Richard B. Collins. 1. Patrick Furman. Sarah Krakoff. Robert M. Phillips, and Patrick R. Thiessen, and for Elizabeth M. Joyce's research assistance. I remain responsible for any errors or shortcomings. 1. The new section introduced by the 2008 revisions, UPC section 2-805, garnered surprisingly little commentary, particularly in light of the importance of the doctrine it supplanted. See, e.g., John H. Martin, Reconfiguring Estate Settlement, 94 MINN. L. REv. 42, 71 n. 156 (2009) (discussing the UPC's incorporation of the Uniform Trust Code's concept of reformation): James R. Walker, Correcting Documentary 1isdescription with Reformation, 39 COLO. LAW. 97. 98-99 (2010) (discussing the need for broader reformation relief and the UPC's adoption of the minority view on reformation). However, the section is drawn from RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 12.1 (2003). where the adoption of reformation did generate discussion. See, e.g.. Pamela R. Champine, M1y Will Be Done: Accommodating the Erring and the Atypical Testator, 80 NEB. L. REV. 387, 389-90 (2001) (discussing the Restatement's adoption of the reformation doctrine and exploring the value of the change); Emily Sherwin, Clear 403 404 SOUTH CAROLINA LAW REVIEW [VOL. 64: 403 other kindred donative instruments, on account of mistake. This Essay focuses on the reformation of wills and the impact that this little-heralded provision may carry. While the introduction of reformation to the UPC is largely an improvement,4 it raises a number of concerns. This Essay proposes that reformation of wills is not only doctrinally distinct from the interpretation of and Convincing Evidence of Testaientary Intent: The Searchfor a Comnpromnise Between Formality and Adjudicative Justice, 34 CoNN. L. REv. 453, 473-76 (2002) (analyzing the proposed clear and convincing evidence standard and arguing that it only ends up diminishing accuracy without preserving the advantages of formalities); John HT.Langbein, Curing Execution Errorsand Mistaken Terms in Wfills: The Restatement of Wills Delivers New Tools (and New Duties) to Probate Lawyers, 18 PROB. & PROP. 28, 30 (2004) (enumerating four factors identified by scholarly literature as having significant influence on the Restatement's adoption of the reformation doctrine). 'The judicial reception to the Restatement proposal has been mixed. The Indiana Supreme Court followed the Restatement position in reforming a testamentary trust. See Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 895 N.E.2d 1191. 1200 (Ind. 2008). At least one New York Surrogate Court opinion expressly applied it to a will. See In re Estate of Herceg, 747 N.Y.S.2d 901, 905 (Sur. Ct. 2000). Other New York Surrogate Courts have reached different results in the application of reformation to beneficiaries with special needs. See, e.g., In re Rappaport, 866 N.Y.S.2d 483, 488 (Sur. Ct. 2008) (granting reformation); In re Rubin, 781 N.Y.S.2d 421, 426 (Sur. Ct. 2004) (rejecting reformation). Several courts have expressly rejected the Restatement position. See, e.g., In re Last Will & Testament of Daland, No. 2920-MA, 2010 WL 716160, at *5 (Del. Ch. Feb. 15, 2010) (declining to adopt the Restatement position): Flannery v. McNamara, 738 N.E.2d 739, 746 (Mass. 2000) ("To allow for reformation in this case would open the floodgates of litigation .. ."); In re Lyons Marital Trust, 717 N.W.2d 457, 462 (Minn. Ct. App. 2006) (finding no authority to reform an unambiguous will). 2. UPC section 2-805 provides that a "court may reform the terms of a governing instrument." UNIF. PROBATE CODE § 2-805 (amended 2010), 8 U.L.A. 238 (Supp. 2012) (emphasis added). While the focus of this Essay is on wills, reformation under the UPC is not so limited, but instead applies to any "governing instrument," which includes: a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), transfer on death (TOD) deed, pension, profit- sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type. Id. § 1-201(18), 8 U.L.A. at 21. 3. See id. § 2-805, 8 U.L.A. at 238. 4. As discussed in the text that follows, the plain meaning rule generally prohibits the use of extrinsic evidence of the testator's subjective intent in the reformation of wills on account of mistake. See infra note II and accompanying text. The plain meaning rule has been roundly criticized by most contemporary commentators; for example, Professor Hirsch has referred to it as "the meaningless plain meaning rule." See, e.g., Adam J. Hirsch, hIheritance and Inconsistency, 57 OlIo ST. L.J. 1057, 1117 (1996). Professors Langbein and Waggoner's tour de force 1982 article in the Pennsylvania Law Review made the case for abandoning the plain meaning rule, supplanting it with a reformation remedy. See John 1. Langbein & Lawrence W. Waggoner, Reformation of Wills on the Ground of Mistake: Change of Direction in A4mnerican Lawu?, 130 U. PA. L. REV. 521, 590 (1982). As discussed in this Essay their work provided the early direction for the 2008 UPC amendment. See infra notes 39-40 and accompanying text. That said, in the ensuing years, the UPC otherwise increased the amount of extrinsic evidence admissible in the interpretation of wills, consequently addressing some of the common drafting mistakes noted in the Langbein and Waggoner article. See infila notes 26-40 and accompanying text. 2012] COMtNG TO TERMS WITlH THE UPC'S REFORMATION OF WILLS 405 ambiguous wills5 but also a more troubling measure that has the potential to create more. possibly unfounded, will contests.6 Further, while the closely related doctrine governing the interpretation of ambiguous wills needs to be clarified and made uniform by the UPC, the new reformation measure fails to meet these needs. Part II of the Essay briefly discusses the plain meaning rule and its role in addressing and reforming ambiguities in instruments, while Part III describes the companion no reformation rule. The origin and operation of the new UPC reformation rule is discussed in Part IV of the Essay, and Parts V and VI assess its impact in the overall context of the UPC. In Part VII, the Essay proposes a clarification of the rule to address the longstanding, but unevenly applied, doctrine of ambiguity. With those substantive interpretative issues addressed, the remainder of the Essay adopts a cautionary tone: Part VIII questions the impact of the new rule on estate litigation and estate planning practice. In Part IX the Essay accordingly proposes clear limits on the role of juries in reformation proceedings. With Part X the Essay concludes by recommending safeguards that might be desirable for some testators to avoid unforeseen complications arising from the UPC's adoption of reformation. II. THE PLATN MEANING RULE With limited exceptions, a valid will must be in writing 9 and must satisfy execution formalities. The "plain meaning rule" protects the role of these requirements by acting as a statute of frauds-precluding the introduction of extrinsic evidence of the testator's subjective intent. In addition to its special 5. See infra note 61 and accompanying text.
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