IN THE MATTER OF THE TRUST OF VIOLET NELSON, DECEASED.
Submitted November 6, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Bergen County, Docket No. P-000001-15.
Shahinian & Giantomasi PC, attorneys for
appellants/cross-respondents Jacob Nelson and Ayelet Nelson,
Ariel Nelson and Alexandra Nelson-Tal (A. Ross Pearlson,
Daniel D. Barnes and Brigitte M. Gladis, on the briefs).
Lorraine Teleky-Petrella, attorney for
respondent/cross-appellant Jared M. Lina.
Judges Sabatino, Ostrer and Whipple.
principal issue in this appeal is whether a trial court may
look beyond the apparently plain language of a trust that
benefitted the settlor's "grandchildren, " to
determine whether the settlor intended to benefit only some
of her grandchildren. We conclude a court may. As the trial
court here confined itself to the words found within the four
corners of the trust, we reverse the grant of partial summary
judgment to a claimed beneficiary, and remand for trial.
late Violet Nelson left trust property to her
"grandchildren" per capita after the death of her
husband, an income beneficiary. The trust stated that
"the then principal and all accrued or undistributed net
income of the trust shall be distributed in equal shares per
capita and not per stirpes to Settlor's grandchildren who
survive Settlor . . . ." On its face, the trust
apparently benefited all six children of Violet's three
children - sons Jacob (known as "Jack") and Robert,
and daughter Jacoba.
the trustee, sought a declaratory judgment that Jacoba's
two sons were not included among Violet's
"grandchildren." He maintains that Violet did not
consider Jacoba's sons to be her "grandchildren,
" because Jacoba married outside their Orthodox Jewish
faith. Jack contends that after Jacoba's marriage in
1970, Violet mourned her as if she were dead and cut off
contact with her.
fact and other extrinsic evidence allegedly illuminate the
restrictive meaning of "grandchildren" that Jack
propounds. The attorney who drafted the trust stated that he
understood that Violet did not count Jacoba's children
among her grandchildren, nor even acknowledge their
existence. He used the word "grandchildren" to
include only Jack's and Robert's children. Although
Jack and Violet's husband directed the attorney to draft
the trust, the attorney said that he reviewed the trust with
Violet, explained that only Jack's and Robert's
children would benefit, and she understood.
acknowledges that after years of silence between Violet and
Jacoba, the two attempted reconciliation in 1986. But he
contends relations were cut off again after Violet learned
that Jacoba's children had been baptized. Jack points to
an unprobated will Violet signed in 1988. It identified
Jacoba as her daughter, but omitted Jacoba's sons among
the listed grandchildren, and expressly left nothing to
Jacoba or her "surviving issue." A 2001 codicil
also referred only to her "four grandchildren."
Jacoba's sons, Jared Lina, opposed Jack's declaratory
judgment action. Jared and his brother first learned the
trust existed when its scrivener sent him a letter, asking
him to renounce and waive any claim. Jared refused. He
contended the trust was clear on its face. He also marshaled
competing extrinsic evidence to show that Violet intended to
bestow her property on her grandchildren without exception.
He presented evidence of the reconciliation between his
mother and Violet in 1986. He included letters in which
Violet expressed her love for Jacoba and alluded to the role
her husband played in the schism between them. Jared also
described gatherings involving his branch of the family and
Jack's family, to belie the claim that his mother's
side was "dead" to the rest of the family. He noted
that his mother visited Violet during her final illness.
filed a counterclaim, alleging that Jack breached his
fiduciary duty by wrongfully retaining income from the trust
after his father died, rather than promptly terminating the
trust and distributing the principal and income to the
grandchildren. Jared also sought an accounting and
appointment of a successor trustee.
period of discovery, Jared and Jack filed cross-motions for
summary judgment on the trust's
interpretation. The trial judge determined that Jared
and his brother were trust beneficiaries. The court relied
solely on the plain meaning of "grandchildren." The
judge concluded that In re Estate of Gabrellian, 372
N.J.Super. 432, 443 (App.Div. 2004), which we discuss below,
barred the court from considering extrinsic materials. The
judge acknowledged that had he looked beyond the trust's
four corners, the evidence would have created a genuine issue
of material fact, which would have precluded summary judgment
for either side.
court later denied Jack's subsequent motion to
reconsider. Jack contended the court should have applied the
New Jersey version of the Uniform Trust Code (NJUTC), L.
2015, c. 276, codified at N.J.S.A. 3B:31-1 to -84, which was
enacted while the cross-motions were pending. Jack invoked
two sections of the new law that allow a court to construe or
reform a trust to conform to a settlor's probable intent.
N.J.S.A. 3B:31-31 (Section 31) states, "The court may
reform the terms of a trust, even if unambiguous, to conform
the terms to the settlor's probable intent if it is
proved by clear and convincing evidence that there was a
mistake of fact or law, whether in expression or
inducement." The following section states, "Nothing