Coming to Terms with the Uniform Probate Code’s Reformation of Wills

With little fanfare, the 2008 amendments to the Uniform Probate Code (UPC) adopted the reformation of wills, as well as other kindred donative instruments, on account of mistake. This Essay focuses on the reformation of wills and the impact that this little-heralded provision may carry.

While the introduction of reformation to the UPC is largely an improvement, it raises a number of concerns. This Essay proposes that reformation of wills is not only doctrinally distinct from the interpretation of simply ambiguous wills, but also is a more troubling measure that has the potential to create more, possibly unfounded, will contests. Further, while the closely related doctrine governing the interpretation of ambiguous wills needs to be clarified and made uniform by the UPC, the new reformation measure fails to accomplish that.

The Essay first briefly discusses the plain meaning rule and its role in addressing ambiguities in instruments and their reformation. It then discusses the origins and operation of the new UPC reformation rule, weighs the impact of that change in the overall context of the UPC, and proposes a clarification to address the longstanding, but unevenly applied, doctrine of ambiguity. The Essay further proposes clear limits on the role of juries in reformation proceedings. It concludes by recommending safeguards that might be desirable for some testators to avoid unforeseen complications from reformation.