In Gordon v. Gordon, a man and his wife executed a revocable trust agreement and began to fund the trust. No. 11-14-00086-CV, 2016 Tex. App. LEXIS 3357 (Tex. App.—Eastland March 31, 2016, no pet. history). The couple later executed a joint will that their son had prepared.  The joint will had a provision that stated that: “This Will shall override any prior allocations described in trust documents or financial documents such as annuities and certificates of deposit.” But the couple never transferred any property out of the trust and into their own names. After the couple’s death, the executor of the estate filed the joint will and the trustee of the trust had a dispute as to whether the couple’s property should have been in the trust or in the estate. The dispute centered on whether the testators meant to revoke the trust in their joint will.  The trial court entered summary judgment for the trustee, and the executor appealed.

The court of appeals first set forth the standards for construing a will:

When we construe a will, we focus on the testator’s intent. We ascertain the testator’s intent when we look at the language of the entire will as it is contained in the four corners of the will. The court focuses not on what the testator intended to write, but on the meaning of the words actually used. We must presume the testator placed nothing superfluous or meaningless in his will and intended every word to have a meaning and to play a part in the disposition of the property. In this light, courts must not redraft wills to vary or add provisions “under the guise of construction of the language of the will” in order to reach a presumed intent.… “If this intent can be ascertained from the language of the will, then any particular paragraph, clause or sentence, which, if considered alone, might indicate a contrary intention, must yield to the intention manifested by the whole instrument.” And when the dominant purpose of the testator is first stated, the remaining parts of the will should be construed in harmony with that statement, if possible.

The court analyzed the will and noted that the clause before the one at issue stated “It is our intention to dispose of” and that such phrasing, when placed in a will, necessarily indicates a future disposition of property, one conditioned on the death of the testator. The court also noted that the couple declared in the first paragraph of the joint will that they “hereby expressly revoke all our former Wills and Codicils previously made and declare this to be our Last Will and Testament.” The court noted that this language indicated a present intent to make a joint will and revoke all other wills as of the date of execution. The joint will later had a contingent trust provision.  The court held that if the couple had a present intent to revoke the intervivos trust that they would not have had the contingency provision.

The court concluded: “When we read the entire will, especially the sections on property to be disposed of and future bequests that would occur after Patrick’s death, we conclude that the clause at issue is one that is testamentary in nature. We hold that the trial court did not err when it held that the clause, ‘[t]his Will shall override any prior allocations described in trust documents,’ was testamentary and did not result in a revocation of the Trust.” Accordingly, the trust retained the assets.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law