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.