The decedent’s nephew, who is the trustee and one-tenth remainder man of a testamentary trust and a supplemental needs trust under the decedent’s will dated January 21, 1994, as reformed by decree dated May 7, 2009, seeks to judicially settle an amended account for the testamentary trust to which is annexed an informal account for the supplemental needs trust. The trustee also seeks, inter alia, statutory commissions and an additional reformation of the will to eliminate the distribution requirements imposed in Paragraph FIFTH (A) (3) and (B) of the will. Those provisions provide that in the event the niece and nephew beneficiaries residing abroad are unable to come to the United States, their legacies do not lapse, and the trustee is directed to retain their distributive shares until they are able to do so. Citation was served upon the other trust remaindermen, six nieces and nephews, the successors in interest to two post-deceased nephews and a post-deceased niece and an accounting firm which rendered services to the trustee, and there was no appearance in opposition. A nephew who resides in Israel and the distributees of the two post-deceased nephews, all of whom reside in Russia, authorized counsel for the trustee to receive their respective distributions and wire the funds to their respective foreign banking institutions.The decedent died on September 9, 1993. Her sole distributee was the son under a disability who at all relevant times resided in California and received governmental benefits solely in that state. Her will, which created a testamentary trust with the son as lifetime monthly income beneficiary, was reformed so that the monthly distributions were to be paid to a SNT created for the son’s benefit pursuant to the laws of the State of California (see Matter of Woiler, NYLJ, Sept. 30, 2008 at 33, col 2 [Sur Ct, Bronx County 2008]). The will further provides that, upon the son’s death, the trust is to terminate, and all of the remaining interest and principal is to be paid to ten nieces and nephews. The son died on August 26, 2010. As most of the son’s needs were covered by benefits paid by the State of California, only $26,000 was deposited into his SNT, $3,744.45 was expended by the SNT trustee for his benefit and $22,255.75 was transferred back to the testamentary trust upon his death. The amended trustee’s account shows a total of $770,509.96 in principal and income on hand as of March 31, 2018, subject to statutory commissions and unpaid administration expenses including $6,000 for an accountant, $11,380.68 in attorneys’ fees and $335 fiduciary taxes. As directed in the will, all of the trust assets are invested in United States Treasury notes. The trustee’s attorney avers that the son never received any New York State government benefits and he was recently informed by the attorney draftsman of the son’s SNT that the State of California does not require notification or a final account upon the death of a testamentary SNT beneficiary.In support of the branch of the application seeking further reformation of the will, counsel states that he encountered many difficulties because of the confusing directions in the decedent’s will which the court previously described as a “poster child for problems which can arise in the case of a poorly drafted Will” (see Matter of Woiler, NYLJ, Sept. 30, 2008 at 33). At the time the will was executed in 1992, a number of the decedent’s nieces and nephews resided in the former Soviet Union and the decedent believed that they would not be permitted to receive any funds sent to them abroad and such funds would be diverted to that government, so the decedent directed that they come to the United States to receive their bequests. Counsel notes that the nephew residing in Israel and the heirs of the post-deceased nephews residing in Russia are all elderly, lack funds and it would be a great personal and financial hardship for them to travel to the United States to claim their legacies. As the Soviet Union was disbanded after the will was executed and electronic banking is now available world-wide, counsel believes that the foreign beneficiaries would now receive payments wired to their designated banking institutions, ameliorating the decedent’s primary concern and effectuating the decedent’s intent.In support of the fee request, counsel notes that he has specialized in trusts and estates for many years and, although he encountered many legal and administrative obstacles because of the poorly drafted will, he continued to bill at his original $250 hourly rate in this matter, notwithstanding that his current hourly rate is $385, and he does not charge for office overhead expenses such as travel time or photocopying. In further support, he annexes invoices evidencing a total of 135.45 hours spent on trust matters ($34,112.40) since 2009, and $2,507.49 in expenses primarily consisting of filing fees and translation services, of which $11,380.68 remains unpaid in attorney’s fees and disbursements. In addition, the decedent’s accountant seeks $6,000 for preparation of the main trust and SNT accounts and amendments thereto.Generally, reformation of testamentary instruments will be granted only where it effectuates the testator’s intent (see Matter of Snide, 52 NY2d 193 [1981]; Matter of Newman, 18 Misc 3d 1118 [A], 2008 NY Slip Op 50127 [U] [Sur Ct, Bronx County 2008]). The testator’s intent is to be gleaned from a sympathetic reading of the instrument in its entirety and in view of all of the facts and circumstances under which the provisions of the will were framed (see Matter of Bieley, 91 NY2d 520 [1998]; Matter of Carmer, 71 NY2d 781 [1988]; Matter of Fabbri, 2 NY2d 236 [1957], rearg denied 2 NY2d 979 [1957]). It is evident that the decedent’s primary testamentary intent was to benefit the son who was under a disability during his lifetime and make certain that the remaining assets were to be paid after the son’s death to designated nephews and nieces, many of whom were living abroad, without risk of any forfeiture.The courts have cautiously exercised their equitable power to permit deviation of certain testamentary restrictions when there has been an unforeseen change in circumstances and, as a result, the testator’s main objectives would be frustrated if strict compliance with the direction were required (see Matter of Chamberlin, 135 AD3d 1052 [3rd Dept 2016]; Matter of Aberlin, 264 AD2d 775 [2nd Dept 1999]; also see Matter of Muir, NYLJ, June 7, 2013 at 21, col 1 [Sur Ct, NY County 2013]; Matter of Siegel, 174 Misc 2d 698 [Sur Ct, NY County 1997]). In requesting further reformation of the will, the petitioner does not seek to change the decedent’s testamentary scheme; instead, he requests only the authority to change the manner in which certain bequests are to be paid as circumstances have changed since the execution of the will. Accordingly, application of the doctrine of equitable deviation is warranted.Based upon this state of the record, this decision constitutes the order of the court granting the application. After consideration of all relevant factors (see Matter of Freeman, 34 NY2d 1 [1974]; Matter of Kinzler, 195 AD2d 464 [2nd Dept 1993]), counsel fees, disbursements, accountants’ fees and statutory commissions are approved in the amounts requested, and the account is allowed. The will, as reformed by decree dated May 7, 2009 is further reformed to eliminate the requirement that the beneficiaries come to the United States to collect their legacies, and the last sentences of Paragraph FIFTH (A) (3) and (B) are to be stricken.Submit decree and proceed accordingly.
