SECTION 2-903.Uniform Probate Code REFORMATION.

SECTION 2-903. REFORMATION. Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the 90 years allowed by Section 2-901(a)(2), 2- 901(b)(2), or 2-901(c)(2) if:
(1) a nonvested property interest or a power of appointment becomes invalid under Section 2-901 (statutory rule against perpetuities);
(2) a class gift is not but might become invalid under Section 2-901 (statutory rule against perpetuities) and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
(3) a nonvested property interest that is not validated by Section 2-901(a)(1) can vest but not within 90 years after its creation.
Comment
Section 2-903 implements the deferred-reformation feature of the Uniform Statutory Rule Against Perpetuities. Upon the petition of an interested person, the court is directed to reform a disposition within the limits of the allowable 90-year period, in the manner deemed by the court

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most closely to approximate the transferor’s manifested plan of distribution, in any one of three circumstances. The “interested person” who would frequently bring the reformation suit would be the trustee.
Section 2-903 applies only to dispositions the validity of which is governed by the wait- and-see element of Section 2-901(a)(2), 2-901(b)(2), or 2-901(c)(2); it does not apply to dispositions that are initially valid under Section 2-901(a)(1), 2-901(b)(1), or 2-901(c)(1) – the codified version of the validating side of the common-law Rule.
Section 2-903 will seldom be applied. Of the fraction of trusts and other property arrangements that fail to meet the requirements for initial validity under the codified version of the validating side of the common-law Rule, almost all of them will have been settled under their own terms long before any of the circumstances requisite to reformation under Section 2-903 arise.
If, against the odds, one of the circumstances requisite to reformation does arise, it will be found easier than perhaps anticipated to determine how best to reform the disposition. The court is given two criteria to work with: (i) the transferor’s manifested plan of distribution, and (ii) the allowable 90-year period. Because governing instruments are where transferors manifest their plans of distribution, the imaginary horrible of courts being forced to probe the minds of long- dead transferors will not materialize.
Paragraph (1). The theory of Section 2-903 is to defer the right to reformation until reformation becomes truly necessary. Thus, the basic rule of Section 2-903(1) is that the right to reformation does not arise until a nonvested property interest or a power of appointment becomes invalid; under Section 2-901, this does not occur until the expiration of the 90-year permissible vesting period. This approach is more efficient than the “immediate cy pres” approach to perpetuity reform because it substantially reduces the number of reformation suits. It also is consistent with the saving-clause principle embraced by the Statutory Rule. Deferring the right to reformation until the permissible vesting period expires is the only way to grant every reasonable opportunity for the donor’s disposition to work itself out without premature interference.
Paragraph (2). Although, generally speaking, reformation is deferred until an invalidity has occurred, Section 2-903 grants an earlier right to reformation when it becomes necessary to do so or when there is no point in waiting the full 90-year period out. Thus paragraph (2), which pertains to class gifts that are not yet but still might become invalid under the Statutory Rule, grants a right to reformation whenever the share of any class member whose share had vested within the permissible vesting period might otherwise have to wait out the remaining part of the 90 years before obtaining his or her share. Reformation under this subsection will seldom be needed, however, because of the common practice of structuring trusts to split into separate shares or separate trusts at the death of each income beneficiary, one such separate share or separate trust being created for each of the income beneficiary’s then-living children; when this pattern is followed, the circumstances described in paragraph (2) will not arise.
Paragraph (3). Paragraph (3) also grants a right to reformation before the 90-year

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permissible vesting period expires. The circumstances giving rise to the right to reformation under paragraph (3) occurs if a nonvested property interest can vest but not before the 90-year period has expired. Though unlikely, such a case can theoretically arise. If it does, the interest – unless it terminates by its own terms earlier – is bound to become invalid under Section 2-901 eventually. There is no point in deferring the right to reformation until the inevitable happens. Section 2-903 provides for early reformation in such a case, just in case it arises.
Infectious Invalidity. Given the fact that this section makes reformation mandatory, not discretionary with the court, the common-law doctrine of infectious invalidity is superseded by this section. In a state in which the courts have been particularly zealous about applying the infectious-invalidity doctrine, however, an express codification of the abrogation of this doctrine might be thought desirable. If so, the above section could be made subsection (a), with the following new subsection (b) added:
(b) The common-law rule known as the doctrine of infectious invalidity is abolished.
Reference. Section 2-903 is Section 3 of the Uniform Statutory Rule Against Perpetuities (Uniform Act). For further discussion of this section, with examples illustrating its application, see the Official Comment to Section 3 of the Uniform Act.