Also known as: probable intents · probable intention
Written by attorneys · grounded in primary & secondary sources — see below
A principle of construction in donative transfers under which a court ascertains and gives effect to the disposition the donor probably would have made had the donor foreseen the circumstances that actually arose. The principle supplies the standard for deciding whether to modify a document, rebut a presumption of ineffective revocation, or terminate a trust when unanticipated events frustrate the original plan.
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Paula Pierce created an irrevocable trust that left her estate exposed to unnecessary estate taxes because the trustee lacked power to sell appreciated assets. After her death the trustee petitioned to modify the trust so the assets could be sold in a tax-efficient manner. The court granted the modification because the change advanced Paula's tax objectives without contradicting the probable intent she would have expressed had she known the tax consequences.
Pedro Pacheco funded a trust to hold family real estate for his children. Years later a sudden zoning change made continued ownership impractical and the trust expenses exceeded any income. The court terminated the trust because the new circumstances were unforeseen and termination furthered the trust purposes in a manner consistent with Pedro's probable intent.
Parker Phillips executed a will leaving his patents to his brother. Later the same day he wrote revoked across that page and instructed his lawyer to redirect the patents to a scholarship fund. The new will was never signed. The court allowed the revocation to stand because keeping it in effect better matched Parker's probable intent to exclude his brother.
Probable intent permits a court to consider extrinsic evidence and changed circumstances to determine what the donor would likely have wanted, rather than limiting the analysis to the literal text. The doctrine therefore allows modification or a different outcome when unforeseen events would otherwise frustrate the donor's overall plan.
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The presumption that a revocation made in connection with a failed new plan is ineffective yields when evidence shows that leaving the revocation in place better matches the testator's probable intent. Coordinated acts such as physically canceling a gift and simultaneously directing the same property to a new beneficiary supply the necessary proof.
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Yes. A court may modify a donative document to achieve the donor's tax objectives provided the modification does not violate probable intent. The rationale is that the donor would have wanted the change had the tax consequences been known.
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Courts applying probable intent pay particular attention to family considerations and common human impulses when deciding what the testator would have done. Direct statements of intent and surrounding circumstances are admissible to illuminate the testator's overall plan.
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Yes. When continuation of a trust on its existing terms would be impracticable or wasteful, a court may terminate it if the modification or termination accords with the settlor's probable intent. The distribution must then follow the trust purposes as closely as possible.
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