Testator Intent or Scrivener’s Error?
A recent sibling dispute over a will in Texas underscores the importance of testator intent in probate law. An appeals court affirmed a trial court decision to reform a will, based on clear and convincing evidence of testator intent. A scrivener’s error set the dispute in motion.
Proof In a Handwritten Will
The National Law Review reports that in Odom v. Coleman, a brother and a sister sued each other regarding their father’s estate:
The dispute centered on whether the father’s will should be reformed pursuant to Texas Estates Code Section 255.451(a)(3) that permits a court to modify or reform a will if “necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent….” The will contained a residuary clause that devised “personal property” to the son and then to the daughter. A strict reading of the will meant that the decedent’s real property would not be included in the residuary clause and would pass by intestacy. The son sued to reform the will to omit the word “personal” in the residuary clause. The trial court ruled for the son and the daughter appealed.
Ultimately, the appeals court affirmed the trial court’s determination, agreeing that the will should be reformed. Significantly, a handwritten will evidenced the intent of Mr. Coleman, the testator, to give both “personal” and “real” property to his son. An attorney’s “cut and paste” mistake in preparing the final will, was deemed a scrivener’s error–essentially, a minor, clerical error or inadvertence:
The testator had a hand written will that stated that he intended to “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.” The court held that the attorney drafting the will made an error in adding the term “personal” to the term “property” in the residuary clause: “We conclude that the handwritten will showed an intent by Mr. Coleman to covey both personal and real property to Howard. The Final Will prepared by Iverson did not “mirror” Mr. Coleman’s handwritten will because it conveyed only Mr. Coleman’s personal property….”
Avoid Complications: Communication and Bonding
Legal experts remind us that generally, courts affirm the validity of wills, looking at the facts and focusing on what is provable. To say the least, contesting wills can be very taxing on the emotional and financial resources of families. Timely, open and clear communications with family members about our intentions are best for all!
It is also important to carefully designate an executor who will oversee the administration of our affairs upon death. Typically a close friend or family member is named, though that is not a requirement. It’s important to make sure the executor understands the responsibilities—and your wishes.
Although frequently waived among family and friends when a will is prepared, a fiduciary bond, known as an estate or executor bond can be a helpful way to instill confidence in the administration of the estate. Sometimes during the process of probate, the court can require a fiduciary bond—even if originally waived.
Fiduciary bonds guarantee the faithful performance of the executor in accordance with state law. It is easy to obtain all types of fiduciary bonds, including estate or executor bonds, instantly, from leading, national provider, Colonial Surety Company. Just get a quote online, fill in your information, and enter a payment method. Print or e-file the bond from anywhere.It’s that simple!
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