Procedure: Worcester. Civil action commenced in the Worcester Division of the Probate and Family Court Department on July 26, 1996. The case was reported to the Appeals Court by Susan D. Ricci, J. The Supreme Judicial Court granted a request for direct review. Remanded to Probate and Family Court for entry of a judgment of reformation consistent with this opinion.

Facts: Sidney Pond executed his last will and testament on 1-17-91. On the same day he, as settlor, executed a declaration of revocable trust naming his wife and himself as beneficiaries. Sidney and his wife men transferred all their assets except the marital home into the trust. Sidney died on 2-26-96. The trust instrument provided mat during the settlor's lifetime, all of the annual income and such principal as deemed necessary by the trustees were to be paid to settlor and his wife. The trust made no provision for income or principal to be paid to his wife if she were to survive the settlor. The trust provided mat on the death of the settlor the trust shall terminate and its assets to should distributed to the children in equal shares. In his will, Sidney gave all his tangible personal property to his wife and the residue of his estate to the trust. A tax clause in the will authorized his wife the sole unrestricted discretion to elect the federal estate marital deduction. However the trust must provide the surviving spouse a qualifying income interest for life in order to take mat deduction. P contends mat scrivener's errors are apparent when the purposes of the trust are considered. P requested the court to reform the trust.

Holding:The court held that, due to scrivener's errors in the form of omissions and ambiguities, the declaration of trust failed to give effect to the settlor's intent. The settlor's intent was to qualify the trust for the marital tax deduction under § 2056(b)(7) of the Internal Revenue Code. Finally, the court found no need to reform the termination provisions of the trust, because the provision regarding the share of the estate going to issue of a child that predeceased the settlor was valid under Mass. Gen. Laws ch. 191, § 22.

Analysis: A settlor executed a trust, and the trustee brought an action to modify the trust. The trial court reserved judgment, and the trustee sought review. The court remanded to the trial court with instructions to enter a judgment modifying the trust. The court held that it, as the state supreme court, had authority to decide the issue of modification of the trust.

Conclusion: The court remanded to the trial court to enter a judgment modifying the trust.