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Petitioner Seeks to Reform and Construe Will – In the Matter of Rappaport, 21 Misc.3d 919 (N.Y. Surr. Ct., 2008)


In this case the Surrogate’s Court was asked to reform and construe a will. Reformation of a will involves changing the language of a will to cure a mistake so that the will is consistent with the testator’s intent.

Decedent Rappaport died on August 31, 2006. She was survived by four adult children, including petitioner I. Rappaport, and a disabled daughter, S. Rappaport. The will was admitted to probate and all of decedent’s children except S. Rappaport, were appointed as coexecutors. J. Rappaport died in December 2007. The court has appointed Bartol as guardian ad litem to represent S. Rappaport’s interests.

The will included a provision that created a trust for the benefit of S. Rappaport. The decedent bequeathed assets to the trust and stated that trustees are named. Income and principal from the trust fund were to be paid to S. Rappaport in installments as needed for S. Rappaport’s health, support, and maintenance. Upon S. Rappaport’s death, the principal from the trust was to be paid to the other children.

While in the will the decedent nominated executors, it did not nominate the trustees. Thus, in the petition, petitioner I. Rapapport asks that the will be reformed to name I. Rappaport , J. Rappaport , and K. Rappaport as trustees of the trust. In addition, the petition asks the court to convert the trust to a third-party supplemental needs trust. The purpose of a supplemental trust, sometimes referred to as a special needs trust, is to provide for a beneficiary who is disabled in such a way that that the beneficiary’s eligibility for need-based governmental benefits is not impacted.

The court noted that I. Rappaport also initiated a proceeding requesting a guardianship over S. Rappaport under Mental Hygiene Law article 81. In that proceeding he requested that he be named her guardian and K. Rappaport supported him being appointed guardian. However, K. Rappaport filed a response to I. Rappaport’s petition for reformation of the will. In her response, among other things she requested that she be appointed S. Rappaport’s legal guardian. Her response made it clear that there was animosity between her and I. Rappaport.

Bartol, serving as special counsel for Susan in the guardianship proceeding, made recommendations to the court related to the petition for reformation. Bartol’s recommended that the court appoint I. Rappaport as trustee. Further, he stated that he recommends the reformation of the decedent’s will to create a supplemental needs trust. Bartol stated that he reviewed the proposed supplemental needs trust and concluded that it conforms to the requirements of EPTL § 7-1.12.

Courts do not like to reform wills and typically will not unless in doing so the testator’s intent is effectuated. When construing a will, the testator’s intent is to be gleaned from a sympathetic reading of the will in its entirety. The court reasoned that the proposed reformation of the trust for S. Rappaport’s benefit is consistent with the decedent’s intention which was create a trust to provide for S. Rappaport who suffers from chronic disabilities. Further, the will indicates that the decedent had a desire that the trust’s assets be used to supplement, not supplant, government benefits.

The court concluded that the reformation requested by the petitioner is consistent with the decedent’s testamentary plan and are in S. Rappaport’s best interests. The court gave great weight to Bartol’s recommendations and adopted his recommendations to reform the will to appoint I. Rappaport as the trustee of S. Rappaport’s trust created in the will, and to create a third-party supplemental needs trust in conformance with EPTL § 7-1.12.

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