The New Jersey Supreme Court has directed that the Court’s function in construing a decedent’s will is “to ascertain and give effect to the ‘probable intention of the testator.’” Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564 (1962) (further citations omitted). This function applies to the enforcement of the testator’s intent regarding testamentary trusts, In re Estate of Bonardi, 376 N.J. Super. 508, 515 (App. Div. 2006), and is carried out by “giv[ing] primary emphasis to [the testator’s] dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances.” Fidelity Union Trust, supra, 36 N.J. at 564-65.
The primary goal of determining the testator’s intent “is not to be thwarted by unduly stressing ‘the literal meaning’ of [the decedent’s] words.” Id. at 565. Once that intent is established by a preponderance of the evidence, those wishes are to be carried out “even though they be imperfectly expressed.” Id. A fundamental principle of probable intent is that “it is reasonable to impute to the decedent a general intent that reflects ‘impulses… common to human nature.’” In re Estate of Branigan, 129 N.J. 324, 335 (1992) (quoting Fidelity Union, supra, 36 N.J. at 565).
New Jersey courts have shown increasing readiness to effectuate a testator’s probable intent, thereby illustrating the “liberal judicial attitude” announced by the Fidelity Union Trust Court, even to the point of “straining” to accomplish what the testator would have done, had the testator envisioned the issue at hand. See In re Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2006); Branigan, 129 N.J. 324 (quoting Fidelity Union, supra, 36 N.J. at 564-68).
This liberal judicial attitude makes clear the correct answer to the question central to a reformation action:
Will the court execute the clear intent of the testator not fully or clearly expressed in a will, or will it by a strict technical adherence to the form of words and their literal meaning suffer the intention of the testator to be defeated?
Id. at 566-67 (quoting Scarborough v. Scarborough, 134 N.J. Eq. 201 (Ch. Ct. 1943)).
Rather than frustrate a testator’s intent by requiring a strict compliance with an imperfectly drafted testamentary trust, courts in New Jersey may reform a testamentary trust to effectuate the testator’s clear intent.