Last Will and testament document with pen

The case of Odom v Coleman shows that all may not be lost if a mistake is made in drafting a will. 615 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2020, no pet.). In this case, the court modified a will under Tex. Est. Code § 255.451, after the Decedent’s death, so that the will disposed of all Decedent’s real and personal property as he originally intended. This relatively new statute  allows a court to  “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.” Id. at *623. The trial court found that the attorney drafting the will made a scrivener’s error authorizing the court to make this modification and the decision was upheld on appeal.

In this case, the will of the Decedent, Howard E. Coleman, stated that he intended to dispose of all of his property. However, the will’s residuary clause—the catch-all provision—limited the property devised to “personal property,” which passed first to the Decedent’s son, Howard, and then to Decedent’s daughter, Nadine. Thus, the will failed to dispose of Decedent’s real property. As a result, after Decedent died, Howard filed a petition requesting that the will be modified so that all of Decedent’s property would pass under the residuary clause. Otherwise, the realty would pass under the laws of intestacy rather than solely to Howard.

The Court considered the following evidence at trial:

  1. Decedent’s hand-written signed and notarized will stated, “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 6-15-1015. If anything happens to Howard W. Coleman it will go to my daughter Nadine Odom then to Thomas B. Coleman.” Id at *618.
  2. Decedent instructed the drafting attorney to draft a formal will that mirrored Decedent’s handwritten will.
  3. The drafting attorney testified that he used Decedent’s handwritten will “as a template” to draft Decedent’s formal will; he intended to delete the word “personal” appearing before the word “property” so that the formal will disposed of all of Mr. Coleman’s property. This was a “cut-and-paste mistake.” Id at *616–617.

After considering this evidence, the trial court entered a judgment modifying the formal will, deleting the word “personal” before the word “property”, so that all of Decedent’s property would pass under the residuary clause. In upholding the trial court’s decision, the court of appeals placed special emphasis on the provisions in the statute providing that a will may be reformed or modified to correct a scrivener’s error, “even if the will’s terms are unambiguous. Tex. Est. Code § 255.451(a)(3).” Id. at *624. The court of appeals found that it was proper to consider extrinsic evidence in determining that Decedent intended to dispose of all of his property under the will, including his real property. This decision means that Howard will inherit all of Decedent’s real and personal property under the modified formal will.