declining to follow Restatement (Third) of Prop.: Wills and Other Donative Transfers 12.1 allowing reformation of unambiguous will
How later courts described this case
- declining to follow Restatement (Third) of Prop.: Wills and Other Donative Transfers 12.1 allowing reformation of unambiguous will
- "latent ambiguity emerges when the words of a will appear to be unambiguous on their face, but certain extrinsic facts render their meaning uncertain" [citation omitted]
- “Neither the fact that [the object of bounty] predeceased the decedent [and thus the gift failed], nor the absence of a residuary clause or a contingent beneficiary provision, makes [a] will ambiguous”
- "it [is] settled law that, when a beneficiary predeceases the testator, the legacy lapses and falls into residue if there is one; otherwise it must pass as intestate property"
Written by the judges who cited it.
The opinion
Greaney, J.
(concurring in the result, with whom Abrams, J., joins). I agree with the conclusion that summary judgment was properly entered for the defendants. I write separately because I disagree with the court’s reasoning on the reformation issue.
There is, as the court has discussed, no ambiguity in the will. As to reformation, the court concludes that our rule prohibiting the reformation of a will applies and precludes consideration of the remedy. In reaching this conclusion, the court effectively shuts the door on consideration, in an appropriate case, of reformation of a will to correct a mistake which negates the testator’s intent.
In writing for the court in Putnam v. Putnam, 425 Mass. 770 , *678 772 n.3 (1997), Chief Justice Wilkins stated: “For reasons that may no longer be meaningful, we have been less willing to recognize the possibility of proof of mistake in the drafting of a will (as opposed to an inter vivos trust) that is unambiguous on its face. The case may be hard to make, however, for denying reformation of a will where, in substantively similar circumstances, we would allow reformation of a trust instrument. See Restatement of Property (Donative Transfers) § 12.1 comment c (Tent. Draft No. 1 1995).” Section 12.1 of the Restatement states principles that would permit an unambiguous will to be reformed to conform the text of the will to the testator’s intent when clear and convincing evidence establishes “(1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was.” As the Restatement points out, and cases demonstrate, there are instances where mistakes in a will, of the nature described above, caused by scrivener’s error, incorrect legal advice, misrepresentations, and the like, may call for reformation of an unambiguous text. See Restatement, supra at comment i, at illustrations 4 and 6, at 121-122. See also Erickson v. Erickson, 246 Conn. 359 (1998); and cases collected in the Reporter’s Note to comment e of the Restatement, supra at 134-137.
In addition to the discussion in the Restatement, supra, the analysis in Erickson v. Erickson, supra at 373-375 , persuasively dispels the usual arguments for not permitting extrinsic evidence, in an appropriate case, to reform an unambiguous will so the will’s provisions accurately express the testator’s intent. The most common argument against reformation is the one adopted by the court that allowance of the remedy would open the floodgates to “invite disgruntled individuals excluded from a will to demonstrate extrinsic evidence of the decedent’s ‘intent’ to include them.” Ante at 674. There is a short and complete answer that discloses the speciousness of this statement. That answer, given by the Restatement, supra, is that reformation is not available, as matter of law, to an individual claiming that he is the true object of the testator’s bounty, because the will states the testator’s intent accurately, and the testator’s mistake, if one occurred at all, was his own subsequent failure to execute a codicil or new will to carry out his new intent. See Restatement, supra at comment h illustration 2, at 120.
I suspect that, in an appropriate case, the court will conclude *679 that an unambiguous will should be reformed because of a proven mistake in expression or inducement. When that case arrives, the court will either have to reject or revise what is. said about reformation in this opinion or struggle to create an ambiguity, where none exists, in order to permit reformation. On the reformation issue, I would frame the analysis in these terms:
(a) in an appropriate case, consistent with what was said by the unanimous court in Putnam v. Putnam, supra, we are open to consider reformation of an unambiguous will to correct a mistake;
(b) the plaintiffs are not entitled to reformation here, because, even accepting the principles expressed in the Restatement, supra, a case for reformation is not present. There is no mistake in expression or inducement. The will states the decedent’s intent accurately, and the mistake was his own for failing to execute a codicil or a new will. 1
Even though this general principle governs the case, it is worth noting that the plaintiffs’ complaint states their belief that the defendant Paul J. McNamara, the administrator of the estate with the will annexed and a lawyer, “recommended to, [the decedent] on numerous occasions that [the decedent] arrange for . . . McNamara to review [the decedent’s] will,” but the decedent never did so because “he . . . understood that his [w]ill provided for property to go to [pjlaintiffs if [his wife] were to predecease him.” The decedent’s mistake, if he made one at all, was grounded in his own failure to obtain review of his will by a lawyer.