This is a petition by Sharon Wagner and Bradley Zelenitz, the co-trustees of the trust created under Paragraph THIRD of the decedent's will, requesting a reformation of the provisions of Subparagraph 2 of Paragraph THIRD of the will. For the reasons that follow, the application is granted.

The decedent, Neil Zelenitz, died on October 10, 2012 leaving a will dated February 20, 2008. The decedent was survived by his wife, Sharon Wagner, and his two children, Bradley Zelenitz and Jennifer Marsella. The will was admitted to probate by decree of this court dated November 26, 2012. Letters testamentary issued to the decedent's spouse, Sharon Wagner, on the same date. The will creates a trust under Paragraph THIRD, which provides as follows:

THIRD: If my beloved wife, SHARON WAGNER, survives me, I give to my Co-Trustees a sum equal to the largest amount if any, that can pass free of federal estate tax under this Will by reason of the unified credit and state death tax credit (provided use of this credit does not require an increase in the state death taxes paid) but no other credit and, after taking account of dispositions under Articles of this Will, property passing outside of this Will and all charges to principal that are not deducted in computing my federal estate tax. I recognize that no sum may be disposed of by this Article, and that the sum so disposed may be affected by the action of my Executor in exercising certain tax elections. In addition, in order to arrive at the above amount, if my aforesaid wife shall renounce or disclaim the whole or any portion of the property of my estate passing to her under this Will, then I give, devise and bequeath said property so renounced and disclaimed to my Trustee hereinafter named under Paragraph SEVENTH. My Co-Trustees shall hold said sum IN TRUST, NEVERTHELESS, for the following uses and purposes:

1. To hold, manage, invest and reinvest the same and to collect the rents, interest, dividends and other income therefrom, and after the payment of all lawful charges therefrom, to pay over or to apply all of the income therefrom to or for the benefit of my said spouse for and during the term of her life at such times and from time to time as my said Co-Trustees may deem proper, but at least quarterly-annually. [*2]

2. My Co-Trustees are authorized to pay over or apply at any time or from time to time during the lifetime of my spouse such part of the principal of the trust fund created under this Article THIRD, as my Co-Trustees may, in their absolute discretion, deem necessary for the proper care, support or maintenance of my spouse with the limitation that in no event may the amount subject to withdrawal by or on behalf of a descendant of the beneficiary in respect of whom such share was created exceed, in any calendar year, the greater of $5,000.00 or 5% of the trust estate (valued as of the date(s) of transfer(s)).

3. Upon the death of my said spouse, this Trust shall terminate subject to Paragraph SEVENTH and the principal thereof together with any undistributed income, shall be held, paid and administered or distributed pursuant to Paragraph SEVENTH for the benefit of my children, BRADLEY ZELENITZ and JENNIFER MARSELLA, if living, share and share alike, or if not living, to their issue surviving them, per stirpes.

Letters of trusteeship for the Paragraph THIRD trust issued to Sharon Wagner and Bradley Zelenitz.

The petitioners assert that there is a scrivener's error in Subparagraph 2 of Paragraph THIRD and that Subparagraph 2 should read as follows:

"2. My Co-Trustees are authorized to pay over or apply at any time from time to time during the lifetime of my spouse such part of the principal of the trust fund created under this Article THIRD, as my Co-Trustees may, in their discretion, deem necessary for the proper care, support or maintenance of my spouse."

Thus, petitioners assert that the language "with the limitation that in no event may the amount subject to withdrawal by or on behalf of a descendant of the beneficiary in respect of whom such share was created exceed, in any calendar year, the greater of $5,000.00 or 5% of the trust estate (valued as of the date(s) of transfer(s))" (the "5 and 5 language") should be deleted from Subparagraph 2.

According to petitioners, if the language of the will is not reformed there may be a question concerning the number of beneficiaries of the trust which will jeopardize the trust's ability to qualify as a qualified subchapter S trust (QSST) and a qualified terminable interest property (QTIP) trust under the applicable provisions of the Internal Revenue Code. The petition is supported by the affidavit of the attorney-draftsman who states that the language "was inadvertently included in the paragraph and is a scrivener's error."

The decedent's children, Bradley Zelenitz and Jennifer Marsella, are the presumptive remaindermen of the trust. Bradley's children and Jennifer's children are the contingent remaindermen of the trust. Bradley Zelenitz has two children, Chloe Finn Zelenitz and Mackenzie Lane Zelenitz, both of whom are minors. Jennifer Marsella has two children, Justin Tyler Marsella and Samantha Paige Marsella, both of whom are also minors. Jennifer Marsella has executed a waiver and consent consenting to the relief requested. Bradley Zelenitz is a petitioner. Petitioners contend that the interest of the decedent's minor grandchildren may be virtually represented by the decedent's children, Bradley and Jennifer, Thus, there is a threshold issue of jurisdiction to be addressed arising from petitioner's request that this court dispense with service of process on otherwise interested parties by virtue of SCPA 315. [*3]

The criteria employed by the courts in applying virtual representation are: (1) similarly of economic interest between representor and representee; (2) the absence of a conflict of interest; and (3) the adequacy of representation (Matter of Dickey, 195 Misc 2d 729 [Sur Ct, Nassau County 2003]; Matter of Putignano, 82 Misc 2d 389 [Sur Ct, Kings County1975]; Matter of Holland, 84 Misc 2d 922 [Sur Ct, Bronx County 1974]). The representation of class interests (SCPA 315 [2] [a] [ii]) and contingent interests (SCPA 315 [3]) are typical examples of the utility of virtual representation. Even though Bradley is a petitioner, the court is satisfied that the requirements of the statute are met by the facts presented. Therefore, the court approves the use of virtual representation in the manner requested. All of the adult interested parties have consented to the relief requested.

Concerning petitioner's request for reformation, the court notes that courts will rarely reform wills or trusts to correct mistakes (Matter of Snide, 52 NY2d 193 [1981]; Matter of Merns, NYLJ, Mar. 16, 2001, at 18, col 2 [Sur Ct, New York County]) unless the reformation effectuates the settlor's or testator's intent to take maximum advantage of the available tax exemptions and deductions (Matter of Choate, 141 Misc 2d 489 [Sur Ct, New York County 1988]; Matter of Merns, NYLJ, March 16, 2001, at 18, col 2 [Sur Ct, New York County]). The courts have generally been sympathetic where the reformation is requested to cure various tax defects (Matter of Gottfried, NYLJ, Apr. 11, 1997, at 25, col 6 [Sur Ct, New York County]). In particular, courts have allowed reformations to allow a charitable remainder trust to qualify for the charitable deduction (Matter of Stalp, 79 Misc 2d 412 [Sur Ct, Kings County 1974]); Matter of Witz, 95 Misc 2d 36 [Sur Ct, Nassau County 1978]; Matter of Kander, 115 Misc 2d 386 [Sur Ct, Suffolk County 1982]; Matter of Balleta, NYLJ, Feb. 23, 1998 at 33, col 5 [Sur Ct, Westchester County ]; Matter of Bull, NYLJ, Apr. 8, 1998, at 33, col 4 [Sur Ct, Suffolk County] Matter of Martin, 146 Misc 2d 144 [Sur Ct, New York County 1989]; Matter of Khadad, 135 Misc 2d 67 [Sur Ct, Nassau County 1987]; Matter of Lepore, 128 Misc 2d 250 [Sur Ct, Kings County 1985]; Matter of Pasquale, NYLJ, Mar. 21, 1997, at 38, col 5 [Sur Ct, Suffolk County; Matter of Opperman, NYLJ, Oct. 18, 1989, at 26, col 4 [Sur Ct, Kings County]; to maximize the generation-skipping transfer tax exemption(Matter of Choate, 151 Misc 2d 489 [Sur Ct, New York County 1988]); to maximize the credit shelter trust (Matter of Quigan, NYLJ, Nov. 17, 1994, at 34 col 4 [Sur Ct, Suffolk County]);to cure the trust so it will qualify as a subchapter S shareholder (Matter of Mainzer, 151 Misc 2d 203 [Sur Ct, New York County 1991]); and to limit a power in a trust instrument in order to avoid inclusion for estate tax purposes (Matter of Gottfried, NYLJ, Apr. 11, 1997 at 25, col 6 [Sur Ct, New York County]).

Here, it appears that the testator intended to minimize or avoid estate taxation by the creation of the trust in Paragraph THIRD. The petitioners' request to delete the 5 and 5 language from the trust is reasonable given that the inclusion of the 5 and 5 language is illogical since during the spouse's lifetime principal may only be invaded for her benefit, subject to an ascertainable standard. There is no provision allowing for invasion for a "descendant of the beneficiary" which renders the included 5 and 5 language meaningless in any event. Accordingly, the court is satisfied that the reformation is consistent with the testator's intent. Subparagraph 2 of Paragraph THIRD of the will is reformed as follows:

2. My Co-Trustees are authorized to pay over or apply at any time from time to time during the lifetime of my spouse such part of the principal of the trust fund created under this [*4]Article THIRD, as my Co-Trustees may, in their discretion, deem necessary for the proper care, support or maintenance of my spouse."

Submit decree.

Dated: June 26, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court