Can Texas Courts Reform Wills Based on Mistake?

What happens if someone leaves a will based on a mistaken understanding about something outside of the will? For example, a surviving spouse that assumes that the deceased spouse left a will when the deceased spouse did not–then the surviving spouse dies. Can the surviving spouse’s will be challenged and set aside based on the mistaken belief that the former spouse had executed a will?

This gets into questions about mistake of fact. Contract law does provide some remedies in situations like this. But a will is not a contract, it is held to different standards.

The court dealt with this in the case of Carpenter v. Tinney, 420 S.W.2d 241 (Tex. Civ. App.—Austin 1967, writ ref’d n.r.e.). The case provides an opportunity to consider whether courts have the power to reform or set aside a will when the testator acted under a mistake of fact.

Facts & Procedural History

Frankie and W.I. Tinney were married and owned about 400 acres of land in two separate tracts plus cattle. They had four children: Cora, Clifton, Dor, and Milton.

While her husband was still living, Frankie executed a will dated May 8, 1958. Under this will she bequeathed $5 to her husband and $5 each to her daughter Cora and to her son Clifton. All her “other estate, real, personal and mixed” she left to her “two sons, Dor and Milton.” She appointed Dor independent executor of her estate.

W.I. died in February 1959. After his death, Frankie filed an application to probate her husband’s “lost” will under which she claimed to be the sole beneficiary. A will contest was brought. On appeal, the court denied probate of the proffered will in 1963.

Frankie died early in 1961 with her will of May 8, 1958, unchanged. After her death, Dor offered the will for probate. Cora and her husband filed a will contest in county court in July 1962. They named as defendants Cora’s three brothers. One brother was sued individually and as the designated executor of their mother’s will.

The contest attacked the will on three grounds. First, contestants claimed Frankie was of unsound mind and incapable of making a will. Second, they alleged that Dor and Milton exercised undue influence over their mother. Third, they claimed the will was the result of “a fraud or mistake.”

This last claim was based on testimony that at the time Frankie made her will, and on occasions afterwards, she said her husband had made a will leaving his property to Cora and Clifton to the exclusion of the other two children. According to this testimony, she wanted to equalize distribution of their property by leaving all of her property to Dor and Milton to the exclusion of the two children favored by her husband.

It was not true that W.I. had left his property to two children while leaving out the other two children. Contestants contended that if Frankie had not been mistaken, she would not have left her property as she did to only two of her four children.

The county court held against the contestants. They appealed to district court. In the district court trial, the jury found that Frankie had testamentary capacity when she made her will. The trial court refused to submit an issue on undue influence. Contestants moved for judgment notwithstanding the verdict. The trial court overruled the motion. The court also overruled the motion for new trial. Contestants appealed.

The General Rule: Courts Cannot Reform Wills Based on Mistake

The court of appeals addressed whether it could reform Frankie’s will based on her alleged mistake of fact. To hold as contestants urged, the court would need to find that Frankie made her will under a mistake of fact and that the court was therefore privileged to reform her will.

The court stated the general rule clearly. In American Jurisprudence it is said that validity of a will or any part of it is not affected by mistake of fact or law inducing execution of the will unless fraud or undue influence was perpetrated upon the testator.

Generally a mistake of fact or law, in the absence of fraud or undue influence, will not defeat the probate of a will. This remains true even though the testator would or might have made a different will if there had been no such mistake inducing the testator to make the will. It is also the general rule that courts have no right to vary or modify the terms of a will or to reform it even on grounds of mistake.

Contestants argued that a will may be attacked on the ground that its execution was induced by a fraudulent promise to do something in the future. “If a will can be set aside,” contestants argued, “based on a promise, then by the same reasoning a will ought to be set aside when it is uncontroverted that the will is based on a false belief in a given state of facts.”

The court rejected this proposition. The court was unable to accept this reasoning either on the basis that mistake of fact is analogous to a fraudulent promise or that a mistake of fact not induced by fraud or undue influence licenses courts to rewrite a testator’s will.

How Other Courts Have Applied This Principle

The court examined cases from other jurisdictions applying this principle. In Holmes v. Campbell College, 87 Kan. 597, 125 P. 25, 41 L.R.A.,N.S., 1126, the testatrix made specific bequests and then left the residue of her estate to Campbell College. External evidence was offered to show that the testatrix was grossly mistaken as to the extent of her estate. She believed that the specific bequests of $7,715 would practically exhaust her property. In fact the residue amounted to more than $17,000.

The court found that “it was only because of such belief that she allowed the provision to stand, giving the residue to the college. If she had known its real value, she would have left it to her heirs.”

Despite this finding, the court held: “The provision cannot be stricken from the will, however, merely because it was the result of a mistake of fact on her part. This would be in effect to reform the will, and the court possesses no such power.”

In Johnson v. Moore, 223 S.W.2d 325 (Tex. Civ. App.—Austin, writ ref.), the Austin Court of Civil Appeals held that property forgotten or overlooked by the testator, or property he did not know he owned, may be devised under a residuary clause. This remains true regardless of whether the testator knew or believed he had title to the property.

Other cases have held that if the testator labors under no mistake in identity of the document executed, a mistake of fact or law will not defeat probate of a will when there is no fraud or undue influence. Courts have even held that mistake by the maker of a will in believing the person with whom the maker cohabited was a lawful spouse will not vitiate a bequest to such person although the marriage was in fact invalid.

Here’s a section you can add to the end of your article about Carpenter v. Tinney:

How Texas Law Changed in 2015: Limited Judicial Power to Reform Wills

The rule established in Carpenter v. Tinney that courts cannot reform wills based on mistake remained Texas law for nearly fifty years. However, in 2015, the Texas Legislature enacted Subchapter J of the Texas Estates Code, which created narrow exceptions to this general rule.

Section 255.451 now permits courts to modify or reform wills under three specific circumstances. First, a court may modify administrative, nondispositive terms of a will when necessary or appropriate to prevent waste or impairment of the estate’s administration. Second, a court may order modification when necessary or appropriate to achieve the testator’s tax objectives or to qualify a distributee for government benefits, provided the order is not contrary to the testator’s intent. Third, a court may reform a will to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.

This third category represents the most significant departure from Carpenter. Under the new statute, courts can correct mistakes—but only scrivener’s errors. A scrivener’s error occurs when the person drafting the will makes a mistake in reducing the testator’s intent to writing. The statute does not authorize courts to reform wills based on the testator’s own mistakes about facts or law.

The Tinney children’s argument would still fail under the current statute. They claimed their mother was mistaken about facts—specifically, about what their father’s will provided. That is not a scrivener’s error. The attorney who drafted Frankie’s will accurately captured what she told him to write. The problem, according to contestants, was that Frankie based her instructions on a mistaken belief about her husband’s testamentary plans. The statute provides no remedy for such mistakes by testators themselves.

The Takeaway

This case shows that Texas courts enforce wills as written rather than reforming them based on what testators might have wanted under different circumstances. A mistake of fact, absent fraud or undue influence, does not provide grounds for setting aside or reforming a will. Even when evidence shows the testator would have made a different will if not for the mistake, courts lack power to rewrite the document. This is even true under the new Estates Code provisions, which only allow judicial reformation when there is a scrivener’s error in the document itself.

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