Article on UPC’s Reformation of Wills

Wayne M. Gazur (Professor of Law, University of Colorado School of Law) recently published an article entitled, Coming To Terms With the Uniform Probate Code’s Reformation of Wills, 64 S.C. L. Rev. 403 (Winter, 2012). Provided below is an introduction to his article:

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

While the introduction of reformation to the UPC is largely animprovement, it raises a number of concerns. This Essay proposes thatreformation of wills is not only doctrinally distinct from the interpretationof ambiguous wills but also a more troubling measure that has the potentialto create more, possibly unfounded, will contests. Further, while the closely related doctrine governing theinterpretation of ambiguous wills needs to be clarified and made uniform by theUPC, the new reformation measure fails to meet these needs.

Part II of the Essay briefly discusses the plain meaning rule and itsrole in addressing and reforming ambiguities in instruments, while Part IIIdescribes the companion no reformation rule. The origin and operation of thenew UPC reformation rule is discussed in Part IV of the Essay, and Parts V andVI assess its impact in the overall context of the UPC. In Part VII, the Essayproposes a clarification of the rule to address the longstanding, but unevenlyapplied, doctrine of ambiguity. With those substantive interpretative issuesaddressed, the remainder of the Essay adopts a cautionary tone: Part VIIIquestions the impact of the new rule on estate litigation and estate planningpractice. In Part IX the Essay accordingly proposes clear limits on the role ofjuries in reformation proceedings. With Part X the Essay concludes byrecommending safeguards that might be desirable for some testators to avoidunforeseen complications arising from the UPC’s adoption of reformation.