AN ACT TO PROVIDE FOR THE JUDICIAL REFORMATION OF WILLS TO CORRECT MISTAKES AND THE JUDICIAL MODIFICATION OF WILLS TO ACHIEVE THE TESTATOR'S TAX OBJECTIVES AND TO REVISE THE NORTH CAROLINA UNIFORM TRUST CODE TO ACHIEVE CONSISTENCY IN THE REFORMATION OF TRUSTS WITH THE REFORMATION OF WILLS, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.
Enacts Article 10, Reformation and Modification of Wills, to GS Chapter 31. Authorizes the court to reform the terms of a will if the terms of the will are ambiguous in order to conform the terms to the testator's intent. Requires that the testator's intent be proved by clear and convincing evidence, and that the terms of the will were affected by mistake of fact or law, whether in expression or inducement.
Authorizes the court to modify the terms of a will to achieve a testator's tax objective as long as modification of the terms is in a manner that is not contrary to the testator's probable intent. Allows the court to provide that the modification has retroactive effect.
Directs an action for reformation or modification of a will be filed in superior court pursuant to Article 26 of GS Chapter 1. Establishes that the personal representative is a necessary party to an action for reformation or modification of a will. Bars an interested person in the estate who files an action for reformation or modification of a will from thereafter filing a caveat to the will under Article 6 of GS Chapter 31.
Effective January 1, 2018, and apply to estates of decedents dying before, on, or after that date.
Amends GS 28A-2-4, providing for subject matter jurisdiction of the clerk of superior court in estate proceedings. Current law sets out four subdivisions in subsection (a) describing what is included in, but not limited to, estate proceedings. Provides that for the proceedings described in subdivision (4) of subsection (a), the provisions of Article 26 of GS Chapter 1 apply to an estate proceeding (previously applied to a trust proceeding) pending before the clerk of superior court to the extent consistent with Article in the absence of a transfer to superior court. Subdivision (4) of subsection (a) concerns proceedings to ascertain heirs or devisees, to approve settlement agreements, to determine questions of construction of wills, to determine priority among creditors, to determine whether a person is in possession of property belonging to an estate, to order the recovery of property of the estate in possession by third parties, and to determine the existence or nonexistence of any immunity, power, privilege, duty, or right.
Amends subsection (c) to provide that the clerk of superior court does not have jurisdiction under subsections (a) or (b) of the statute, or GS 28A-2-5 (subject matter jurisdiction in special proceedings), of the existing list of actions, without otherwise limiting the jurisdiction of the Superior Court Division of the General Court of Justice (currently, refers to subsections (a) and (c) of the statute and does not cite GS 28A-2-5).
Amends GS 28A-2-4(c), as amended above, which provides that the clerk of superior court does not have jurisdiction under subsections (a) or (b) of the statute or GS 28A-2-5 of the specified actions, without otherwise limiting the jurisdiction of the Superior Court Division of the General Court of Justice. Adds to those specified actions, actions for reformation or modification of wills under new Article 10 of GS Chapter 31.
Rewrites GS 36C-4-415 to authorize a court to reform the terms of a trust, if the terms of the trust are ambiguous, in order to conform the terms to the settlor's intent. Requires the settlor's intent be proved by clear and convincing evidence, and that the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. Deletes the provision that established jurisdiction under the statute to be as provided in GS 36C-203.
Effective January 1, 2018, and applies to actions for the reformation of trusts filed on or after that date.
Section 5 directs the Revisor of Statutes to print all explanatory comments of the drafters of Section 4 of the act as the Revisor deems appropriate.