In this article, we discuss the actions taken in reformation of wills and trust and answer the following questions:
Reformation of a will or trust is the action of modifying the will or trust instrument to best align with the intent of the settlor (the person that established the trust). The differences between a will and trust reformation versus modification are subtle, but, generally, reformation is concerned with correcting an inaccuracy caused by mistake, fraud, or changed circumstances, while modification seeks to modify the actual terms of the trust to clear up confusion, ambiguity or due to an unforeseen change in circumstances. Both revocable and irrevocable trusts can be reformed or modified by the court and these actions can be forced by an interested party in a reformation lawsuit. To learn more about the reformation of an irrevocable trust click here.
Depending on the party interested in reformation, reformation of a revocable trust is normally a much easier task than modifying an irrevocable trust. Depending on the portion of the trust being reformed, if the living settlor of a trust wishes for reformation it can sometimes be done so without issue and in many cases without the involvement of the court. However, if a beneficiary or another interested party wants to force the reformation of a trust, a more involved legal process may ensue. Reformation of wills, on the other hand, are generally not permitted by Illinois courts except for in extreme circumstances. This specifically refers to the will of a deceased person. Illinois courts have ruled it is not appropriate for a “will to be made for the testator,” and that allowing reformation of a descendant’s will would open the door for the interpretation of all wills to be thrown into question.
Reformation of a trust based on mistake is exactly what it sounds like, the party seeking reformation of the trust alleges that a mistake was made when the trust in question was written. Reformation of a trust based on mistake is very similar to the process of reformation of property transfers and thus is based directly on the law of contract reformation. The party seeking reformation must prove that 1) A mistake was made and 2) That an actual agreement exists other than the agreement that is stated in writing. The overall goal of the trust reformation is not to change the original agreement arrived at by the involved parties but to change the language of the trust so that it best reflects the original agreement.
There are multiple types of mistakes that may be corrected under a reformation of trust based on a mistake, they include:
Reformation of a trust based on changed circumstances mostly refers to instances where an unforeseen circumstance arises that makes the correct language of the trust ineffectual at carrying out the intent of the trust creator. The unforeseen circumstance must be extreme enough that it will clearly cause an issue such as the beneficiaries suffering a loss under the current language of the trust. Illinois caselaw suggests that two distinct categories exist that encompass all, if not the majority, of the scenarios that would fulfill the requirement for reformation. They are:
The burden of proof in an action for reformation is on the party seeking reformation and the standard of proof is clear and convincing evidence. The evidence presented in a reformation suit is similar to many other types of civil suits. Often one or both parties will present documents supporting their position as well as testimony from appropriate parties as to the intent of the contract. Having an experienced probate attorney can make all the difference between winning and losing a reformation suit. If you have any questions regarding reformation of a will or trust, give us a call at 630-324-6666.
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