Texas Appeals Court Affirms Reformation of Unambiguous Texas Will Based On Cut-And-Paste Mistake

In Odom v. Coleman, the Court of Appeals for the First District of Texas affirmed the probate court’s reformation of a will based on a cut-and-paste mistake, even though the terms of the will were unambiguous.

The Facts of Odom v. Coleman

Howard Coleman was survived by four of his children: Carolyn, Nadine, Thomas, and Howard.  From 2000 to 2015, Decedent’s son, Howard, cared for him in Decedent’s home.  In 2015 Decedent required heightened care and moved into a nursing home.  Howard and his wife were the only family members who helped Decedent move into the nursing home, and Howard visited almost daily.

The Handwritten Will

The nursing home staff asked Decedent if he had a will.  Decedent did not, but hand wrote a will the very same day.  Howard’s wife Vivian was with Decedent when he wrote the will.  Mr. Coleman stated in his handwritten will:

“I Howard E Coleman . . . leave all my worldly goods, land, property accounts all that I own to my son Howard W. Coleman on this day 6-15-2015. If anything happens to Howard W Coleman it will go to my daughter Nadine Odom then to Thomas B Coleman.”

Decedent had concerns about the validity of the handwritten will.  Vivian faxed the will to attorney Chris Iverson, who thought it was probably valid but recommended that Decedent execute a formal, self-proving will. Decedent decided that Iverson should prepare a formal will based on his handwritten will. Iverson testified that it was his intention to prepare a will that mirrored the handwritten will. In drafting Mr. Coleman’s will, Iverson used a former client’s will as the template. Iverson testified that, to make the will conform to Mr. Coleman’s “wishes,” he deleted “a lot of things” from the template.

The Formal Will

Decedent executed the formal will in August 2015, with a notary and witnesses.

In 2016, Iverson was reviewing his files in preparation of retirement and noticed that the pagination on the will was not printed correctly, and that the witness initials had been pushed to the top of the next page instead of being at the bottom of the page.  Iverson contacted Vivian and asked that Decedent re-execute the will printed in the correct format.

In November 2016, Decedent re-executed the will, which contained the same content as the 2015 will.

The will’s residuary clause, Paragraph 3.2, provided as follows:

I [Mr. Coleman] give all my remaining personal property to my son

Howard W. Coleman. If he shall not survive me, then that portion of

my estate that would have passed to him shall pass instead to my

daughter Nadine Odom. If she shall not survive me, then that portion of

my estate that would have passed to her shall pass instead to my son

Thomas B. Coleman. If all three of said beneficiaries shall predecease

me, then my estate shall pass to my heirs at law.

As drafted by Iverson, the 2016 Will did not dispose of Decedent’s real property. Paragraph 3.2, the residuary clause, only disposed of Decedent’s “personal property.”  Iverson testified at trial that he was aware that Decedent owned real property, that he intended to write the will just as the handwritten will was written, that he did not intent for the word “personal” to modify the word “property” in the residuary clause, and that he had intended to delete the word “personal” but had forgotten to do so from the former client’s will that he had used as a template.  Iverson testified that his failure to remove the word “personal” was his mistake, and he characterized it as “just a cut-and-paste mistake.”

The Texas Probate Court Proceedings

After Decedent’s death, Howard applied to probate the 2016 Will.  Howard’s sister Nadine petitioned for a declaratory judgment that Decedent’s will did not dispose of his real property, and that the real property should pass pursuant to the laws of intestacy.  Howard argued that it was necessary for the probate court to modify or reform the 2016 Will to conform with the decedent’s intent pursuant to Texas Estates Code subsection 255.451(a)(3), which permits the probate court to modify or reform a will’s terms when “necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.”

Howard asked the probate court “to reform or modify the will to strike the word ‘personal’ from Paragraph 3.2 [the residuary clause],” asserting that the word “personal” was a scrivener’s error.

After a bench trial, the Texas probate court ruled in favor of Howard, and reformed the will to reflect Decedent’s intent, which the probate court found by clear and convincing evidence was to leave all the property he owned to his son Howard.

In the judgment, the probate court found that Mr. Coleman’s Final Will “contained a scrivener’s error” and that it was “necessary” for the probate court “to reform or modify the Will by striking the word ‘personal’ found in the first sentence of Paragraph 3.2 so the Will conforms with [Mr. Coleman’s] intent; [and] that there [was] clear and convincing evidence that the Testator intended to leave his entire estate to his son Howard W. Coleman.” The probate court ordered the word “personal” stricken “from the first sentence of Paragraph 3.2” of the Final Will.

Texas Estates Code 255.451 (a)(3) Allows Correction Of a Scrivener’s Error

Section 255.451(a)(3) states:

(a) Subject to the requirements of this section, on the petition of a personal representative, a court may order that the terms of the will be modified or reformed, that the personal representative be directed or permitted to perform acts that are not authorized or that are prohibited by the terms of the will, or that the personal representative be prohibited from performing acts that are required by the terms of the will, if:

(3) the order is necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.

An order described in Subsection (a)(3) may be issued only if the testator’s intent is established by clear and convincing evidence.

Thus, under the statute, a court may modify or reform an unambiguous will to correct a scrivener’s error when necessary to conform the will to the testator’s intent, which must be shown by clear and convincing evidence.

What Is a Scrivener’s Error Under The Texas Estates Code?

The Texas Estates Code does not define the term “scrivener’s error.”  Black’s Law Dictionary defines “scrivener’s error” as a synonym for “clerical error.” A “clerical error” is one “resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.”

Will Reformation v. Will Construction Under Texas Probate Law

Nadine argued that reformation of Decedent’s will was impermissible because courts cannot rewrite an unambiguous will.  Nadine also argued that extrinsic evidence is not allowed when the will is unambiguous.  In support of her arguments, Nadine cited to cases involving will construction under Texas law, not will reformation or modification.  See San Antonio Area Found. v. Lang.

The Texas appeals court stated:

Reformation and modification cases involving written instruments are fundamentally different than construction cases, and, as a result, the same legal principles do not apply…Reformation cases involve a party claiming that the instrument, as written, contains an error and does not reflect the intent of the party or parties executing it….In contrast, will construction cases seek to ascertain the testator’s intent from the language in the will as written.

Extrinsic Evidence Can Be Considered In Texas Will Reformation Cases

In reformation cases, Texas Estates Code § 255.451(a)(3) expressly provides that a will may be reformed or modified to correct a scrivener’s error in the will’s terms, even if the will’s terms are unambiguous.  Because reformation is permitted under Texas law even when the will’s language is unambiguous, reliance on extrinsic evidence to determine whether the terms of the will accurately reflect the testator’s intention may be necessary.

The Court held that the probate court did not err by considering extrinsic evidence to ascertain Decedent’s intent with respect to whether he intended to limit the property he bequeathed to Howard in Paragraph 3.2 of his will to “personal” property or whether he intended his will to convey all of his property.

Clear and Convincing Evidence of a Scrivener’s Error

Nadine also urged that the Texas probate court incorrectly found a scrivener’s error, the reformation of an unambiguous will was beyond the scope of what is permitted to correct a scrivener’s error, and that the evidence did not show, by clear and convincing evidence, Decedent’s intent regarding the disposition of his property.

The Texas appeals court agreed that the evidence demonstrated Decedent’s intent to dispose of all of his property, including his real property, stating:

Mr. Coleman’s handwritten will stated that he intended to “leave all [his] worldly goods, land, property accounts all that [he] own[ed] to [his] son Howard W. Coleman.” As discussed, the handwritten will’s comprehensive language demonstrated an intent by Mr. Coleman to dispose of all his property, not just his personal property. The evidence—namely the testimony of Vivian and Iverson— showed that Iverson was asked to prepare Mr. Coleman’s formal will based on his handwritten will.

*****

The testimony of Wegner and Denis, the two witnesses to Mr. Coleman’s signing of the formal wills, further supported the probate court’s finding regarding Mr. Coleman’s intent. Wegner testified that he and Mr. Coleman spoke when Mr. Coleman signed his Final Will. Mr. Coleman told Wegner that he owned “a piece of property” and that he was giving “his estate” to his son.  Denis testified that she heard Mr. Coleman say that he was giving his property to Howard.

The Texas appeals court held that the probate court properly exercised its discretion when it allowed reformation of decedent’s unambiguous will by deleting the scrivener’s error, that is, the word “personal” before the word “property” in the residuary clause, to make the will conform to Mr. Coleman’s intent to dispose of all his property, real and personal.

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