Odom v. Coleman, No. 01-19-00669-CV, 2020 WL 7213352 (Tex. App. Dec. 8, 2020, no pet. h.).


Interpretation and Construction

Reformation to Correct Scrivener's Error

The testator’s will stated that he intended to dispose of all of his property. However, the will’s residuary clause covered only personal property which passed to Son but if Son predeceased the testator, then to Daughter. A dispute arose as to the disposition of residuary real property. Daughter claimed that the testator died intestate with regard to the real property so she would inherit one-half. Son argued that even though the will is unambiguous, he can establish with clear and convincing evidence that reformation is appropriate to correct a scrivener’s error under Estates Code § 255.451. The court was impressed with the testimony of the drafting attorney who admitted that he used a former client’s will as a template for the testator’s will and neglected to delete the word “personal” from the residuary clause when he cut-and-pasted the form language. Accordingly, the court reformed the will by deleting the word “personal” in the residuary clause resulting in all property passing under the will. Daughter appealed.

The appellate court reviewed the evidence and agreed with the trial court’s reformation and that it was supported by clear and convincing evidence. For example, the court pointed to a prior holographic will in which all property was left to Son and to Daughter only if Son had already died. The attorney’s testimony made it clear that the testator intended all of his property to pass in this manner. The court also noted that it would set aside the trial court’s determination only upon finding that the court abused its discretion in reforming the will.

Moral:  A court may reform an unambiguous will because of a scrivener’s error if there is clear and convincing evidence of the testator’s intent.


In Terrorem Provision

Both the trial and appellate courts agreed that bringing an action under Estates Code § 255.451 to modify or reform a will to correct a scrivener’s error does not trigger forfeiture under a no-contest clause. The action is to carry out the testator’s intent, not to thwart it.

Moral:  Will modification and reformation actions are not will contests and thus do not result in forfeiture under an in terrorem provision.