In re Ignacio G., No. 06-19-00014-CV, 2019 WL 2376184 (Tex. App.—Texarkana June 6, 2019, no pet. h.).
Husband and Wife created a trust naming their two children together as beneficiaries which provided in the summary section that each would receive 50% of the trust when the last parent died. Wife’s child from another partner whom Husband adopted attempted to claim she was also a beneficiary of the trust because a later trust provision indicated that “the remaining trust property shall be distributed to the Grantors’ [_________].” The trust then provided an alternate gift if “none of the Grantors’ descendants survives the surviving Grantor.” The trustee, one of the two mutual children, asserted that the word “descendants” was meant to be inserted into the blank to be consistent with the alternate gift. The other mutual child claimed that only the two mutual children were beneficiaries based on the summary of the trust. However, this child did not request the court to insert the word “children” into the blank. Testimony of the drafter of the trust, an attorney who was disbarred a few years after drafting the trust, tended to show that the settlors only intended their mutual children to be beneficiaries. The trial court granted summary judgment reforming the trust by inserting the word “children” into the blank and reforming later references to “descendants” to “children.” The adopted child appealed.
The appellate court reversed. Because the trial court granted summary judgment, the appellate court began its analysis under the assumption that the trial court determined the trust was unambiguous. The court also recognized that although Property Code § 112.054(b-1)(3) allowing the reformation of unambiguous provisions to correct a scrivener’s error was inapplicable, prior Texas law would allow reformation nonetheless to correct a scrivener’s error. The court explained that the trust obviously contained scrivener’s errors but that the evidence was insufficiently strong to support a summary judgment. The evidence raised issues as to how the trust was supposed to read and thus a determination of the settlors’ intent is a question of fact for a jury.
Moral: A trust instrument should be carefully proofread to be certain all blanks are filled in and that terms are consistent.