Law Lessons from IN THE MATTER OF THE ESTATE OF EDITH WEINER, DECEASED, Chan. Div., Bergen Co., P-483-11, CONTILLO, P.J. Ch., March 5, 2013:
A Will has been held not to be a proper instrument to revoke or modify a revocable trust when the power to do so is an inter vivos power because a Will has no legal efficacy until the death of the testatrix. See Estate of Kovalyshyn, 136 N.J. Super. 40, 47 (Hudson County Court 1975); Estate of Henning, 116 N.J. Super. 491 (Ch. Div. 1971). However, if we posit that a testator intended to dispose of Trust assets by Will — that she clearly intended by her Will that a beneficiary inherit a certain property — then, under the doctrine of probable intent, the court would give effect to that specific bequest, notwithstanding that the property was titled in the name of a Trust.
Under N.J.S.A. 3B:3-33.1, which codifies the doctrine of probable intent.
a. The intention of a testator as expressed in his will controls the legal effect of his dispositions, and the rules of construction expressed in N.J.S. 3B:3-34 through N.J.S. 3B:3-48 shall apply unless the probable intention of the testator, as indicated by the will and relevant circumstances, is contrary.
b. 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 dispositions therein and the rules of construction expressed in N.J.S. 3B:34 through N.J.S. 3B:3-48 shall apply unless the probably intent of such settlor or of such individual, as indicated by the trust or by such governing instrument and relevant circumstances, is contrary. For purposes of this Title, when construing each of these rules of construction the word “testator” shall include but not be limited to a settlor or a creator of any other governing instrument; the word “will” shall include a trust or other governing instrument; the word “devise” shall include any disposition in a trust or other governing instrument; and the word “devisee” shall include a beneficiary of a trust or other governing instrument.
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