In In re Lesanto, 12-P-1111, 2015 Mass. App. Unpub. Lexis 318 (Ma. App. Ct. Apr. 21, 2015), the court held that failure of the testator to execute a new will intended to pour property over to an executed, new trust, was ineffective to fulfill the testator's intent to disinherit his children after a family dispute.
The testator's attorney had drafted a new will and a trust document that purported to revoke all prior trusts. The second trust, which expressly revoked all prior trusts, was intended to work with the new will to effectuate the testator's intent of disinheriting his children. In October 2010, the testator executed the new trust agreement at his attorney's office but was not able to execute the new will because there were no witnesses available. He planned to come back later but was admitted to the hospital the next day and never left the hospital until his death a few weeks later. At the time, Massachusetts G.L. c. 203, 3B did not permit a devise or bequest in a will to a trust that was not in existence on the date of execution of the will. As a result, after his death, the testator's children claimed that the residuary bequest in the testator's will lapsed because the first trust was revoked and the second trust could not be utilized. Seizing upon the testator's obvious intent, and to avoid a result that seemed contrary to that intent, the probate court reformed the second trust so that it merely amended (rather than revoked) the first trust.
The Court of Appeals reversed the decision, stating that, while intent must be considered and utilized to construe testamentary documents, it cannot be used to supply missing terms. The court found that the testator's intention was not simply to create the second trust to amend the first but also to execute a new will. Therefore, the court held that the pour-over provision from the first will lapsed for want of beneficiary, and the residuary was to pass by intestacy.