Home BHALCHANDRA B. DIWADKAR, trustee, [Note 1] vs. AKSHAY N. DALAL & others. [Note 2]

439 Mass. 1011

June 24, 2003

Bhalchandra B. Diwadkar, trustee of the Akshay N. Dalal Irrevocable Trust, commenced this action in the county court, seeking declaratory relief and an order reforming certain provisions of the trust. Specifically, the trustee sought to correct an alleged scrivener's error by removing Akshay N. Dalal and his wife, Shobhana Dalal, as trust beneficiaries.

It is well settled that a trust instrument may be reformed to conform with the settlor's intent. Walker v. Walker, 433 Mass. 581 , 587 (2001), and cases cited. "To ascertain the settlor's intent, we look to the trust instrument as a whole and the circumstances known to the settlor on execution." DiCarlo v. Mazzarella, 430 Mass. 248 , 250 (1999), quoting Pond v. Pond, 424 Mass. 894 , 897 (1997).

Here, Akshay expressly waived any right to alter, amend, or revoke the trust. He also waived the rights to sell, assign, or hypothecate the life insurance policies funding the trust. These actions are consistent with Akshay's intent, stated in an affidavit in support of the complaint, to create a trust that would provide funds to his issue after he and his wife had died, without being subject to estate taxes at the time of their respective deaths. See, e.g., Simches v. Simches, 423 Mass. 683 , 688 (1996) (reforming qualified personal residence trust to avoid generation skipping transfer taxes by removing beneficiaries and recognizing that, "[i]n the area of trusts and estates, the reduction of taxes is often not just a factor affecting intent, but rather the overriding purpose of the entire transaction"). Therefore, we remand the case to the county court for the entry of a judgment reforming the trust as proposed.

So ordered.

Laurie J. Hall & Joan Garrity Flynn, for the plaintiff, submitted a brief.


[Note 1] Of the Akshay N. Dalal Irrevocable Trust.

[Note 2] Shobhana Dalal, Anupam Dalal, Neil Dalal, and Commissioner of Internal Revenue.


439 Mass. 1011

June 26, 2003

Following a trial by jury, the defendant was convicted of three counts of indecent assault and battery on a child under the age of fourteen years. G. L. c. 265, ยง 13B. The Appeals Court, in an unpublished memorandum and order pursuant to its rule 1:28, affirmed the convictions. Commonwealth v. Tardy, 56 Mass. App. Ct. 1109 (2002). We then granted the defendant's application for further appellate review. We agree with the reasoning and result of the Appeals Court. The judge, based on the voir dire testimony of the victim and her mother, did not abuse his discretion in denying the defendant's motion in limine seeking to exclude fresh complaint testimony; the fact that the testimony as it developed at trial suggested that more time may have passed

Page 1012

between the alleged offenses and the time of the fresh complaint than the voir dire testimony had initially indicated does not, on the facts of this case, constitute a ground for reversal.

Judgments affirmed.

Timothy M. Farris for the defendant.

Sidney E. Reavey, Assistant District Attorney, for the Commonwealth.