Doctrine of Probable Intent Does Not Apply in Intestacy

Mother died intestate although she had begun to plan her estate to create supplemental needs trusts for two her daughters who receive both SSI and Medicaid. On motion by the administrator, the trial court used the doctrine of probable intent to order the creation of supplemental needs trusts for the daughters.

On appeal by the state, the intermediate appellate court reversed, holding that New Jersey’s doctrine of probable intent allows reformation of a will but not the creation of a testamentary disposition where none existed. In re Estate of Flood, 9 A.3d 1086 (N.J. App. Div. 2010).

Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for bringing this to my attention.