Saturday, June 8, 2019
Texas courts have historically relied on the testator's intent on whether a will is ambiguous or not, and whether or not to present extrinsic evidence contrary to the will's instructions. If a court found that will was unambiguous, outside evidence could not be brought in by any party.
However, 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 under Texas Estates Code § 255.451. First and foremost, only a personal representative (such as an administrator or executor of the estate) can petition a court to modify an unambiguous will. Also, the court will only allow the modification under three different circumstances: 1) it “is necessary or appropriate to prevent waste or impairment of the estate’s administration," 2) the modification “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,” and 3) 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.” A scrivener’s error, or mistake by the attorney writing the will, does not include a mistake of law or fact by the testator.
Overall, the court's goal is to support the testator's original intent and follow their wishes. Even if that means altering what is physically written down on the piece of paper.
See David Fowler Johnson, Texas Statutes Now Allow a Court To Modify or Reform an Unambiguous Will, Texas Fiduciary Litigator, June 6, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.