In this will contest involving the doctrine of probable intent, Hon. Robert P. Contillo, P.J.Ch. ruled that a court cannot alter the language of a trust that is plain and unambiguous even when extrinsic evidence strongly suggests that the trust language is not what the settlor intended.

Violet and Joseph Nelson had three children: Jacob (known as “Jack”), Jacoba and Robert. Jack had three children, Jacoba had two children, and Robert had one child.

Violet and Joseph practiced Orthodox Judaism, which forbids members of the Jewish faith from marrying non-Jews. In 1970, Jacoba married a man who was not Jewish. The marriage caused a rupture in the relationship between Jacoba and her parents. In that regard, between 1986 and Violet’s death in 2006, there was no contact between Jacoba and Violet, or between Jacoba’s children and Violet.

Violet’s Last Will and Testament, prepared in 1988, as well as a codicil, prepared in 2001, omitted Jacoba and her children as beneficiaries.

Violet also executed a trust, in 2005. The trust distribution provision provided that, upon Joseph’s death, the “then principal and all accrued or undistributed net income of the trust shall be distributed in equal shares per capita and not per stirpes to Settlor’s grandchildren who survived Settlor …” Contrary to Violet’s will, the trust did not expressly omit Jacoba’s children as trust beneficiaries.

Despite the plain, unambiguous language of the trust, there was substantial extrinsic evidence, or evidence outside the trust itself, suggesting that Violet probably meant to omit Jacoba’s children as trust beneficiaries. In that regard, the scrivener of the trust testified that the terms of the trust were based upon instructions from Violet’s husband and son, not Violet. Further, Violet was not provided a copy of the trust prior to execution. Violet did not read the document before signing it. There was no evidence that the document was read to her. There was also no evidence that either Jack or Joseph, Violet’s son and husband, read the document prior to execution. Importantly, the scrivener testified that he told Violet prior to the execution of the trust document that Jacoba’s children were omitted as trust beneficiaries, and that Violet understood that fact and fully agreed with that disposition of trust assets.

In 2015, Jack brought a lawsuit as trustee of Violet’s trust, seeking a declaration that Jacoba’s children were not beneficiaries of the trust. At the conclusion of discovery, Jack filed a motion for summary judgment, while one of Jacoba’s children filed a cross-motion seeking confirmation that Jacoba’s children were trust beneficiaries.

In its ruling, the court found that the case was governed by N.J.S.A. 3B:3-33-16 which provides, in pertinent part, that

The intention of a settlor as expressed in a trust, or of an individual as expressed in a governing instrument, controls the legal effect of the disposition therein, … unless the probable intent of such settlor or of such individual, as indicated by the trust or such governing instrument and relevant circumstances, is contrary.

Based upon the above statute, the court ruled that Jacoba’s children were trust beneficiaries because a court cannot resort to extraneous circumstances to explain what is plainly stated in the governing instrument, the trust document, absent ambiguity in the language of the trust which, in this trust, did not exist:

The language of the trust is plain and unambiguous: the beneficiaries of the Trust are the “Settlor’s grandchildren”. This is the core provision of this simple trust. It is not susceptible to alternate readings. It is the sole reference in the Trust to the identity of the beneficiaries of the Trust.

As a result, the court denied the trustee’s motion for summary judgment, and granted the motion for summary judgment brought by one of Jacoba’s children, finding that Jacoba’s children were trust beneficiaries.

The case is annexed here – In the Matter of Violet Nelson

UPDATED on 4/18/16 – A motion for reconsideration was filed by plaintiff based upon New Jersey’s newly-enacted Uniform Trust Act. The motion was denied by Judge Contillo based upon his finding that the new law was not effective until months after passage, thereby leaving the old law operative under which Jacoba’s children were properly found to be trust beneficiaries. The decision on the motion for reconsideration can be found here – In the Matter of Violet Nelson – P-1-15 – Reconsideration Decision

UPDATED on 4/2/18 – Jacoba’s children filed an appeal. A New Jersey appellate court reversed Judge Contillo’s decision, ruling that a court can alter the plain and unambiguous language of a trust when extrinsic evidence suggests that the trust language is not what the settlor intended. My blog post on the appellate court’s ruling can be found here – Courts Can Alter Unambiguous Trust Language When Necessary To Effectuate Settlor’s Probable Intent

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