viewing the doctrine of probable intent as "[a] leading principle governing will construction"
How later courts described this case
- viewing the doctrine of probable intent as "[a] leading principle governing will construction"
- court prohibited modification to power of appointment because it would alter the dispositive provisions and grandchildren would face possibility of losing inheritance
Written by the judges who cited it.
The opinion
CLIFFORD, J.,
dissenting.
Only prompt application of the jurisprudential equivalent of the Heimlich maneuver can save the doctrine of probable intent from today's hard-to-swallow decision.
The Court says that despite its unmistakable clarity, the will of decedent, George V. Branigan, can be reformed — not explained, not interpreted, mind you, but changed — to permit the estate to take advantage of certain tax advantages produced by amendments to the federal-tax laws enacted after execution of the will but both before and after (with retroactive effect) decedent’s death. Despite the case’s “tax” orientation, one need not be a tax-law expert to understand the issue posed by this appeal — and a good thing, too. I am put in mind of my own reference, some fifteen years ago in Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481 , 371 A. 2d 1192 (1977), to former-Judge Rifkind’s observation on the subject of tax law that “ ‘[a]fter 50 years of practice, I would no more have the audacity to formulate my own tax return than I would engage in open heart surgery.’ ” Id. at 636, 371 A. 2d 1192 (concurring opinion) (quoting Simon H. Rifkind, Are We Asking Too Much of Our Courts?, 15 Judge’s J. 43 (1976)). What one must understand, however, is that whatever the tax consequences of the decedent’s testamentary disposition, the will could not have been clearer in its articulation of its trust provisions.
The Court holds that those provisions may now be altered to minimize the federal-tax impact on the estate. I am for tax minimization as much as the next taxpayer, but I am not willing to warp a respectable principle of law to achieve that end.
*339 Branigan had no intent whatsoever in respect of the generation-skipping tax, and nothing in his will gives any inkling of his slightest concern in that regard. Not the most intensive examination of the document will reveal any accommodation of that tax, much less any ambiguity in language seeking to address it. And therein lies the key, for my purposes.
My understanding of the doctrine of probable intent appears in a dissenting opinion in Engle v. Siegel, 74 N.J. 287 , 377 A.2d 892 (1977). Despite its failure to have drawn a crowd then or since, my view in Engle continues to guide my approach to this case. I repeat it here:
As I understand the operation of the doctrine of probable intent, an ambiguity in the instrument is the condition [that] triggers the doctrine’s application to change the result [that] would attend a literal application of the language of the will.
[Id. at 298, 377 A.2d 892 (dissenting opinion).]
And:
[T]he doctrine of probable intent should not be used to create an ambiguity in a will [that] the doctrine will then be called upon to decide.
[Ibid.]
Because the triggering circumstance, namely, an ambiguity, for application of the doctrine simply does not exist, the Court’s laudable rescue operation fails. The majority opinion’s creativity is dazzling: cobbling two trusts out of the testator’s Fund A (“Fund A will be divided into two marital-deduction trusts,” ante at 331, 609 A.2d at 435); divvying up the assets from one of the testator’s trust between the revisionists’ two new trusts (“The first of those trusts will be comprised of [specified] assets” and the second “will consist of the balance,” ante at 331, 609 A.2d at 435); and, finally, modifying (translated: inventing) the provisions of one of the testator’s trusts by incorporating the terms of his second trust (“[T]he two [newly-created] marital-deduction trusts would specifically incorporate the provisions of Fund B and require that they continue to be held, administered, and disposed of in accordance with those provisions, at the death of decedent’s wife, instead of being added to the principal of the trust set forth in Fund B.” Ante at 331, 609 A.2d at 435). Everyone goes away happy — even, apparently, the federal-tax authorities, who are willing to “go *340 along” with the nifty new arrangement but not willing to promulgate a regulation to codify their acquiescence. The only "victim” is the law.
Because I continue to harbor an abiding conviction that the area of testamentary dispositions is the last place for creative jurisprudence such as the Court exercises today, and because the doctrine of probable intent has absolutely no legitimate role in the decision of this appeal, I would affirm.
STEIN, J., concurring in the result.
For affirmance in part; reversal in part; and remandment — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN— 6.
For affirmance — Justice CLIFFORD — 1.