In Odom v. Coleman, a brother and a sister sued each other regarding their father’s estate. No. 01-19-00669-CV, 2020 Tex. App. LEXIS 9551 (Tex. App.—Houston [1st Dist.] December 8, 2020, no pet.). 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,” which must be established by clear and convincing evidence. Id. 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 intestancy. 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.

The daughter alleged that the will was unambiguous and had to be construed to mean that the residuary clause only applied to personal property. The court of appeals rejected this argument because “[r]eformation and modification cases involving written instruments are fundamentally different than construction cases, and, as a result, the same legal principles do not apply.” Id. Moreover, “[r]eformation cases involve a party claiming that the instrument, as written, contains an error and does not reflect the intent of the party or parties executing it.” Id. The court held that the trial court could hear evidence regarding the testator’s intent in this reformation case:

Significantly, Estates Code subsection 255.451(a)(3) expressly provides that a will may be reformed or modified to correct a scrivener’s error in the will’s terms, even if the will’s terms are unambiguous. Because reformation is permitted even when the will’s language is unambiguous, reliance on extrinsic evidence to determine whether the terms of the will accurately reflect the testator’s intention may be necessary. While extrinsic evidence is admissible in will-construction cases only when a term is open to more than one construction, courts have considered extrinsic evidence in reformation cases in other contexts, such as reformation of trust instruments, even when the language in the instrument is unambiguous.


The court then reviewed the evidence and affirmed the trial court’s determination that the will should be reformed. 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. Thus, the evidence shows that the placement of the word “personal” before the word “property” in the Final Will was an error.” Id.  The court held that the attorney’s mistake was a scrivener’s error:

The Estates Code does not define the phrase “scrivener’s error.” Generally, when a statute uses an undefined word, a court should apply the word’s common, ordinary meaning. “We often look to dictionary definitions to shed light on the ordinary meaning of a statutory term.” Black’s Law Dictionary defines “scrivener’s error” as a synonym for “clerical error.” A “clerical error” is one “resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” Iverson’s failure to delete the word “personal” from the residuary clause falls within the definition of “scrivener’s error.” As discussed, Iverson testified that he used a former client’s will as a template to draft Mr. Coleman’s will. Iverson stated that, to make the will conform to Mr. Coleman’s “wishes,” he had to delete “a lot of things” from the former client’s will. Iverson intended to delete the word “personal” before the word “property” but failed to do so. Iverson testified that his failure to remove the word “personal” was “just a cut-and-paste mistake.” The evidence showed that the error was not a result of Iverson’s professional judgment or based on a decision that he or Mr. Coleman made to limit the property he devised to personal property. Instead, the evidence showed that Iverson’s error in failing to delete the word “personal” resulted from an “inadvertence.” See id. Thus, we conclude that the evidence and the plain and ordinary meaning of what constitutes a scrivener’s error supports the probate court’s determination that Iverson’s failure to delete the word “personal” was a scrivener’s error for purposes of Estates Code subsection 255.451(a)(3).

Id. The court also held that the trial court’s determination was based on clear and convincing evidence. The court also rejected an argument that the son’s claim to reform the trust triggered an in terrorem clause. The court held:

Here, Howard’s petition shows that he did not bring the action to attack the will’s terms selected by Mr. Coleman. Instead, Howard brought the action to attack a term not selected by Mr. Coleman, which was frustrating Mr. Coleman’s intent to dispose of all his property. The entire focus of the action was to ensure that Mr. Coleman’s intent was preserved and given effect by reforming the will to conform with his intent. Thus, given the facts of this case, we hold that the probate court did not err in rejecting Nadine’s claim that Howard forfeited his right to inherit under the will by violating the in terrorem clause.

Id. The court affirmed the trial court’s judgment reforming the will to omit the word “personal” from the residuary clause so that the son was entitled to all of the decedent’s property (personal or real) that was not otherwise disposed of in the will.

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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…

[email protected]

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