It may be time to dust off the Ouija boards.
Come September, a judge will have discretion to rewrite the terms of a Will according to the testator’s probable intent.
Let’s play this one out.
Dan has two sons, Todd and Jacob. Dan writes a Will that is clear, concise and unambiguous. In his Will, Dan leaves all of his property to Todd, and never mentions Jacob. Dan names his good friend Harry as the executor.
Dan dies. Harry files the Will for probate, and after a hearing is named Independent executor. Harry then files a petition asking that the terms of the Will be modified to correct a “scrivener’s error” (an error made by the drafter). Harry claims that, despite the wording of the Will, Dan really intended to divide his property evenly between his two sons Todd and Jacob.
So the Judge holds an evidentiary hearing to determine what Dan probably intended. Note this isn’t a Will contest – no one has asserted that the Will was a forgery, or that Dan was incapacitated or unduly influenced. Nope, this is a hearing to convince the Judge to second guess the clear wording of Dan’s properly executed Last Will and Testament. Even more interesting – while the evidence has to meet a high standard of “clear and convincing”, the statute provides that the court “shall exercise the court’s discretion” in deciding to modify the Will.
There is more. A Will can also be reformed if it is necessary to achieve the testator’s tax objectives, to qualify a distributee for government benefits (such as a special needs individual for Medicaid), or to change an administrative provision that would have resulted in waste. AND the law can apply to the estate of a decedent that is already pending.
Estates Code 255.451. Coming soon to courthouses near you.
The information contained in this article is general information only and does not constitute legal advice. ©2015