Distribution standard including the term “welfare” does not create an ascertainable standard.

The beneficiaries of a testamentary trust who could remove the trustee and appoint themselves sued the lawyers who drafted the will alleging that not limiting the trustee’s invasion power by an ascertainable standard was malpractice.

Before the suit was filed, the lawyers obtained a reformation of the trust which struck the word “welfare” from the language governing the invasion power.

In Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 868 N.E.2d 4 (Ind. Ct. App. 2007), the court held that a power to invade for the beneficiaries’ “medical care, comfortable maintenance and welfare” is not limited by an ascertainable standard; that the use of the word “welfare” was mistake of law that does not warrant reformation; and that the malpractice suit could proceed although the adverse tax effects of the language would not occur until the beneficiaries’ deaths.