The New Jersey Uniform Trust Code – Part Six: Probable Intent as to Trusts


The doctrine of probable intent had been codified with the probate code effective in February 2005, in N.J.S.A. § 3B:3-33.1.  As to trusts, N.J.S.A. § 3B:3-33.1(b) provides in part (emphasis added):

The intention of a settlor as expressed in a trust, or of an individual as expressed in a governing instrument, controls the legal effect of the dispositions therein and the rules of construction expressed in N.J.S.A. § 3B:3-34 through N.J.S.A. § 3B:3-48 shall apply unless the probable intent of such settlor or of such individual, as indicated by the trust or by such governing instrument and relevant circumstances, is contrary….

Again, the NJ UTC expressly incorporates the doctrine of probable intent to trust interpretation.  N.J.S.A. § 3B:31-28(a) provides that when a court modifies the dispositive or administrative terms of a trust, “to the extent practicable, the modification shall be made in accordance with the settlor’s probable intent.”  Likewise, a trust may be reformed, even if unambiguous to conform to settlor’s probable intent if proved by clear and convincing evidence. N.J.S.A § 3B:31-31.

Finally, N.J.S.A. § 3B:3-32 states that nothing in the act shall  “prevent the court from construing the terms of a trust, even if unambiguous, to conform to the settlor’s probable intent.”  The inclusion of a provision allowing the application of the doctrine in situations in which the language is unambiguous is a significant change in the law. Along the same line, Article 1 states that “terms of a trust” include the manifestation of settlor’s intent “as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.”  N.J.S.A. § 3B:31-3.