Your faithful lawblogger was pleased to end up on the long side of an interesting decision from Nassau County Surrogate John Riordan in the Matter of Estate of Rose Rappaport , 866 N.Y.S.2d 483 which was published in the New York Law Journal on October 23. The decedent had executed a will which provided that the bulk of her estate would be paid into a testamentary trust for the benefit of her daughter Susan who is partially blind ,suffers from a host of physical and emotional disabilities and is unable to care for herself. While the will named Susan’s three siblings as executors, it totally failed to nominate any trustees. When I first was given the instrument to offer for probate, my first impression of the inartfully drawn will was to compare the trust to a staircase leading to a landing — and stopping there! Obviously, it was necessary to petition the court for a will construction to reform the will.

It was decided that in addition to the appointment of trustees, we would also petition the court to convert the testamentary trust to a supplemental needs trust in order to insulate the trust in the event that its beneficiary became a public charge. Following the filing of the petition, things became more complicated when one of the executors died suddenly ,the two remaining executors became embroiled in a dispute and the New York State Department of Health filed opposition to the proposed supplemental needs trust.

As is usual in such cases, the court appointed a guardian ad litem to serve as the attorney for Susan. In that capacity , Ernest Bartol Esq. recommended that event though the intent of the testatrix appeared to favor the appointment of her three able children to serve as trustees for their disabled sister, that the petitioner be appointed as the sole trustee in order to avoid further disputes with his sister Karen who had already agreed not to contest petitioner’s appointment as guardian for Susan in a Supreme Court proceeding  brought simultaneously and who had expressed wishes to end the squabbling. He also strongly endorsed the proposal to create the supplemental needs trust.

Surrogate Riordan looked to the intentions of the testatrix in his determination that the will should be reformed and that a supplemental needs trust be created. He opined that while courts are generally unwilling to reform a testamentary instrument unless this effectuates the testator’s intent, it is of "paramount importance" that the "testator’s actual purpose be determined and effectuated..."He further noted that the criteria of the statute that a supplemental needs trust is established for an individual who suffers from a "severe or chronic or persistent disability" and that the assets " be used to supplement and not supplant  government benefits". He found that these criteria were met in this case and that "the will evidences the decedent’s intention to supplement and not supplant government benefits". An important consideration is that the will did not give the trust beneficiary power to dispose of any trust assets and that the reformation requested by the petitioner would not alter the decedent’s testamentary plan.