The Probate Judge can correct or reform a will or trust if it is clear that “an error was caused by a scrivener’s or draftsman’s failure to embody the true agreement of the parties in a written instrument.” So, the question always is – does the will or trust show the true agreement of the parties or did the scrivener or draftsman (the attorney) make a mistake.

A 2019 case showed the problems that the courts can encounter. A man and woman got married. The wife had a child “Edna” who the husband adopted. They later had two more children, Ignacio and Esperanza. They created a trust through their attorney. In the trust, they said we have two “children” and named Ignacio and Esperanza. The problem was that that definition was the only place in the trust where they used the word “children.” The rest of the trust disposing of their property refered to their “descendants”.

Ignacio and Esperanza asked the court to reform the trust to change “descendants” to “children” and rule that Edna was not included. The trial court did that – meaning that Edna would not inherit. Edna appealed.

The appeals court reversed. Their is a high burden on someone wanting the court to reform a will or trust and Ignacio and Esperanza did not meet that burden.

We find that Ignacio, Jr., and Esperanza’s summary judgment evidence failed to carry their burden to establish their entitlement to judgment as a matter of law. The Trust clearly contained scrivener’s errors. However, the question of Ignacio’s and Myra’s intent was not shown by clear and convincing evidence as a matter of law. Derer (the attorney) did not remember meeting with Ignacio and Myra, had “no direct memory of them,” and could not recall whether they informed him of Edna’s existence. Based on this testimony, which we view in the light most favorable to Edna, it is quite possible that the scrivener’s error occurred in the identification article and should have included Edna. The identification article stated Ignacio and Myra only had two children. This was a scrivener’s mistake of fact. It is undisputed that Edna is Myra’s natural child and that she was adopted by Ignacio.

While a will or trust can be reformed by the probate court, putting on the case for reformation must be done in the proper way.

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