17.9.6 Reformation to Correct Mistakes

MTA § 14.5-413 is modeled after UTC § 415 and holds that a court may reform the terms of a trust, evenifunambiguous, to conform the terms with the settlor’s intent if such intent is proved by clear and convincing evidence.

MTA § 14.5-103(aa) defines “terms of the trust” as the manifestation of settlor intent as expressed in the trust instrument or “as may be established by other evidence that would be admissible in a judicial proceeding.” Reformation of a trust to correct a mistake in expression flows from this expansive definition of what comprises the trust terms. UTC comments states: “Reformation is different from resolving an ambiguity … Reformation … may involve the addition of language not originally in the instrument, or the deletion of language originally included by mistake, if necessary to conform to the settlor’s intent.”

As to the scope and character of extrinsic evidence that may establish settlor intent, see Fred Franke & Anna Katherine Moody, “The Terms of the Trust: Extrinsic Evidence of Settlor Intent,” 40 ACTEC L.J. 1 (2014).