Originally published by David Fowler Johnson.
I. Introduction
Historically, Texas courts could not resort to extrinsic evidence to construe an unambiguous will. San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000). The Texas Supreme Court stated as follows:
In construing a will, the court’s focus is on the testatrix’s intent. This intent must be ascertained from the language found within the four corners of the will. The court should focus not on “what the testatrix intended to write, but the meaning of the words she actually used.” In this light, courts must not redraft wills to vary or add provisions “under the guise of construction of the language of the will” to reach a presumed intent. Determining a testatrix’s intent from the four corners of a will requires a careful examination of the words used. If the will is unambiguous, a court should not go beyond specific terms in search of the testatrix’s intent.
Id. at 639 (internal citations omitted). See also Stephens v. Beard, 485 S.W.3d 914, 916 (Tex. 2016); Hysaw v. Dawkins, 483 S.W.3d 1 (Tex. 2016). In 2015, the Texas Legislature created several provisions that allow a court to look at extrinsic evidence to modify the otherwise unambiguous terms of a will upon certain circumstances. Tex. Est. Code § 255.451.
II. Texas Estate Code Provision Allowing Modification and Reformation Of A Will
The Texas Estates Code allows a personal representative to petition a court to modify or reform a will on one of three different grounds:
(a) 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: (1) modification of administrative, nondispositive terms of the will is necessary or appropriate to prevent waste or impairment of the estate’s administration; (2) the order is necessary or appropriate to achieve the testator’s tax objectives or to qualify a distributee for government benefits and is not contrary to the testator’s intent; or (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.
(b) An order described in Subsection (a)(3) may be issued only if the testator’s intent is established by clear and convincing evidence.
Tex. Est. Code § 255.451. The statute limits who can seek to modify a will. Texas Estates Code § 22.031 defines “‘personal representative’ to include (1) an executor and independent executor; (2) an administrator, independent administrator, and temporary administrator; and (3) a successor to an executor or administrator.” Tex. Est. Code § 22.031. So, this requires that a personal representative bring a claim to modify a will—a beneficiary is not allowed to do so. This is an important limitation as a personal representative may be less inclined to seek a modification or reformation that favors some beneficiaries over others due to its fiduciary duties, whereas a beneficiary, who owes no fiduciary duties, would be more inclined to do so.
The statute only allows a court to modify or reform a will or to allow a personal representative to act contrary to the plain language of the will for three limited reasons. First, allowing the modification “is necessary or appropriate to prevent waste or impairment of the estate’s administration.” Id. This provision would require the personal representative to present evidence that by following the express terms of the will that there would be a waste of estate assets or would impair the estate’s administration. Second, allowing the modification will “is necessary or appropriate to achieve the testator’s tax objectives or to qualify a distributee for government benefits and is not contrary to the testator’s intent.” Id.
Third, allowing the modification “is necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.” This provision would allow a personal representative to offer evidence that, despite what the will unambiguously provides, that the testator really wanted something different. This is the most controversial basis to modify a will because presumably a testator reads and understands the will that he or she executes. It is presumed that he or she understands the plain meaning of the words in the will. It is assumed that if a testator states his or her intentions before executing a will that he or she changed his or her mind when they executed a will that has a contrary meaning. The statute does not define the term scrivener’s error. Under a commonly understood understanding of “scrivener’s error,” this statutory basis appears to be narrow: “A scrivener’s error is an error resulting from a minor mistake or inadvertence, especially in writing.” Packard Transport, Inc. v. Dunkerly, No. 14-09-00652- CV, 2010 Tex. App. LEXIS 4984 at *12 (Tex. App.—Houston [14th Dist.] July 1, 2010, no pet.) (mem. op.) (citing Black’s Law Dictionary 582 (8th ed. 2004)).
A scrivener’s error does not include a mistake of law or fact by the testator. If the testator meant what was written, even if based on false information, then there was not a scrivener’s error. It should be noted that one ground for undue influence in Texas is fraud and deceit. So, if a beneficiary misrepresents a legal or factual matter upon which the testator relied in executing a will, a trial court may refuse to admit the will to probate.
III. Burden of Proof To Establish A Scrivener’s Error
One important limitation is that a scrivener’s error must be proven by clear and convincing evidence, and not merely by a preponderance of the evidence. In the vast majority of situations in civil law, the preponderance of the evidence standard applies. Under a preponderance of the evidence burden, the fact finder must decide if the plaintiff’s allegations meet the legal standard of the preponderance of the evidence meaning that they are “more likely true than not.” Essentially, the fact finder must be convinced that it is at least 51% likely that the plaintiff’s allegations are correct. The fact that the Texas Legislature has refused to use the commonly-used preponderance of the evidence standard is very significant. “[N]o doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence.” Ellis Cnty. State Bank v. Keever, 888 S.W.2d 790, 792 (Tex. 1994) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950)). “Only in extraordinary circumstances, such as when we have been mandated to impose a more onerous burden, has this Court abandoned the well-established preponderance of the evidence standard.” Id. Clear and convincing evidence is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Id. So, trial courts should not grant modification or reformation relief where it is a close call; a party seeking that relief has a heavy burden to establish that a ground for the relief is established by firm and credible evidence that substantially outweighs counter evidence.
IV. Recent Texas Property Code Provision Allowing Reformation of A Trust
It should be noted that in 2017, the Texas Legislature added Texas Property Code Section to similarly permit reformation of a trust:
On the petition of a trustee or a beneficiary, a court may order that the terms of the trust be reformed if: (1) reformation of administrative, nondispositive terms of the trust is necessary or appropriate to prevent waste or impairment of the trust’s administration; (2) reformation is necessary or appropriate to achieve the settlor’s tax objectives or to qualify a distributee for governmental benefits and is not contrary to the settlor’s intentions; or (3) reformation is necessary to correct a scrivener’s error in the governing document, even if unambiguous, to conform the terms to the settlor’s intent.
Tex. Prop. Code §112.054(b). Subsections (e) and (f) also provide: “(e) An order described by Subsection (b-1)(3) may be issued only if the settlor’s intent is established by clear and convincing evidence. (f) Subsection (b-1) is not intended to state the exclusive basis for reformation of trusts, and the bases for reformation of trusts in equity or common law are not affected by this section.
V. Overarching Purpose Is To Conform Will To True Intention of Testator
The Estate’s Code also provides: “The court shall exercise the court’s discretion to order a modification or reformation under this subchapter in the manner that conforms as nearly as possible to the probable intent of the testator.” Tex. Est. Code § 255.452. This provision enforces the traditional concept that a testator’s intent should control. In exercising its ability to modify or reform a will, this statute provides that the court should do so to conform to the probable intent of the testator. This provision makes complete sense regarding the third ground for modifying a trust: scrivener’s error. It makes less sense regarding the first two grounds: modification of administrative, nondispositive terms to prevent waste or impairment of the estate’s administration or to achieve the testator’s tax objectives or to qualify a distributee for government benefits.
VI. Modification or Reformation May Be Retroactive
The trial court can reform a will so that it has retroactive effect. Id. at § 255.453. This may be very important for tax reasons and also to protect a personal representative who had not acted in conformance with the express terms of a will. If the modification or reformation has retroactive effect, then the personal representative did act in conformity with the modified or reformed will, and did not breach an duty, even though he, she or it did not act in conformity with the express terms of the will.
VII. Potential Liability Of Personal Representative For Bringing Or Failing To Bring Action To Modify or Reform A Will
The statute provides for a protection for a personal representative who does not act to modify or reform a will. Section 255.455 provides:
(a) This subchapter does not create or imply a duty for a personal representative to: (1) petition a court for modification or reformation of a will, to be directed or permitted to perform acts that are not authorized or that are prohibited by the terms of the will, or to be prohibited from performing acts that are required by the terms of the will; (2) inform devisees about the availability of relief under this subchapter; or (3) review the will or other evidence to determine whether any action should be taken under this subchapter.
(b) A personal representative is not liable for failing to file a petition under Section 255.451.
Tex. Est. Code § 255.455. So, a personal representative may not be sued by a beneficiary for failing to petition a court to modify or reform a will. Even if the personal representative knows that the testator wanted something different from what was expressly stated in his or her will, the personal representative does not have to try to correct the error and may follow the express terms of the will without fear that a beneficiary will be able to successfully sue the personal representative for breaching a duty. This provision will certainly make it more likely that personal representatives will not seek a modification or reformation.
Further, a personal representative may breach duties where he, she or it attempts to modify or reform a will. A personal representative owes the same fiduciary duties to estate beneficiaries as a trustee owes a trust beneficiary as a personal representative is essentially a trustee of the trust estate. A trustee owes a duty of loyalty to each beneficiary and owes a duty to treat beneficiaries fairly. One could certainly see a circumstance where the personal representative seeks a modification or reformation to favor one beneficiary over another or to protect itself from liability for taking actions that were not allowed by a will. Where no ground exists for such a modification or reformation, the personal representative would likely breach a fiduciary duty.
So, where a personal representative has no liability for failing to modify or reform a will, and may have liability for trying to do so, it is almost certain that no reasonable personal representative would seek to modify or reform a will unless every interested party agrees with that course of action.
VIII. Conclusion
This relatively new statute is controversial in Texas even though it is limited. One law student advocates for broadening the scope of the statute and allowing courts to modify wills in additional circumstances, including a mistake of law or fact or because there are changed circumstances. Brent Debnam, Deadly Intentions: Posthumously Modifying Unambiguous Wills To Protect The Actual Intentions Of Texas’s Testators, 462 Estate Planning And Community Property Law Journal, 461 (2017). Others prefer the historical plain-meaning rule and the inability to modify or reform an unambiguous will. Once again, historically, Texas courts considered a will a unilateral instrument, and were concerned only with the intention of the testator as expressed in the will. Gee v. Read, 606 S.W.2d 677, 680 (Tex. 1980); Stewart v. Selder, 473 S.W.2d 3, 7 (Tex. 1971); Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 581 (1955). Courts held that it was the sense in which the words were used by the testator that was the ultimate criterion to judge intent. A basic rule of will construction was that the words of a will should be given their plain and usual meaning unless it is clear from the will as a whole that the testator intended a different meaning. Jensen v. Cunningham, 596 S.W.2d 266, 271 (Tex. Civ. App.—Corpus Christi 1980, no writ). A will should not be construed to defeat the manifest purpose of the testator to have a reasonably prompt settlement and distribution of his or her estate or construed as to accomplish something the testator expressly forbade. Brooker v. Brooker, 76 S.W.2d 180 (Tex. Civ. App.—Fort Worth 1934), set aside on other grounds, 130 Tex. 27, 106 S.W.2d 247 (1937); Wisdom v. Wilson, 59 Tex. Civ. App. 593, 127 S.W. 1128 (Tex. Civ. App.—1909, writ refused). Many dislike the concept of changing the plain meaning rule because this significant change risks eviscerating a testator’s right to control his or her estate after death and also creates unnecessary hardships for clients, practitioners, and courts. There are no court opinions in Texas at this time construing the new statutes discussed above. Time will tell how courts in Texas will take to modifying or reforming an unambiguous will.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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