Odom v. Coleman

• Decision Date: 08 December 2020
• Docket Number: NO. 01-19-00669-CV,01-19-00669-CV
• Citation: 615 S.W.3d 613
• Parties: Nadine Yvonne Coleman ODOM, Appellant v. Howard William COLEMAN III, Appellee
• Court: Texas Court of Appeals

615 S.W.3d 613

Nadine Yvonne Coleman ODOM, Appellant

v.Howard William COLEMAN III, Appellee

NO. 01-19-00669-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 8, 2020

Kreig D. Mitchell, Kreig Mitchell, LLC, 6671 Southwest Frwy., Ste. 820, Houston, Texas 77074, for Appellant.

Debra Donaldson, The Hudgins Law Firm, P.C., 24 Greenway Plaza, Ste. 2000, Houston, Texas 77046, for Appellee.

Panel consists of Justices Keyes, Hightower, and Countiss.

Richard Hightower, Justice

This is a dispute between a brother, Howard William Coleman, III ("Howard"), and his sister, Nadine Yvonne Coleman Odom ("Nadine"), regarding the estate of their late-father, Howard E. Coleman ("Mr. Coleman"). The dispute centers on whether Mr. Coleman's will should be reformed pursuant to Estates Code subsection 255.451(a)(3), which 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. See TEX. EST. CODE § 255.451(a)(3), (b).

Mr. Coleman's will stated that he "intend[ed] that [the] Will dispose of all property subject to [his] testamentary power." However, the will's residuary clause limited the property devised to "personal property," which passed first to Howard then to Nadine. The will, as written, failed to convey Mr. Coleman's real property, resulting in Mr. Coleman dying intestate with respect to his realty.

At trial, Howard offered evidence showing that the attorney who had prepared Mr. Coleman's will was instructed to draft a formal will to mirror a will handwritten by Mr. Coleman. Howard asserted that the handwritten will showed that Mr. Coleman had intended to dispose of all his property, real and personal. The attorney who prepared Mr. Coleman's formal will testified that he used a former client's will as a template to draft Mr. Coleman's will. He had intended to delete the word "personal" appearing before the word "property" in the template so that the will disposed of all of Mr. Coleman's property. He testified that he failed to delete the word, characterizing it as "just a cut-and-paste mistake." After considering the evidence, the probate court reformed Mr. Coleman's will by deleting the alleged scrivener's error, that is, the word "personal" before the word "property" in the residuary clause, to make the will conform to Mr. Coleman's intent of disposing of all his property in the formal will.

On appeal, Nadine challenges the judgment raising six issues.¹ She contends as follows: (1) the probate court's reformation of the will was impermissible because "courts cannot rewrite a will after the testator's death when the will is unambiguous"; (2) the attorney correctly drafted the will to reflect Mr. Coleman's intent to dispose of only his personal property; (3) if there was scrivener's error, the probate court's reformation of the will was beyond the scope of what is permitted by subsection 255.451(a)(3); (4) the evidence was not sufficient to show Mr. Coleman's intent by clear and convincing evidence; (5) the probate court erred by admitting extrinsic evidence to prove Mr. Coleman's intent; and (6) the probate court erred by rejecting Nadine's claim that Howard forfeited his right to inherit under the will by violating the will's in terrorem clause.

We hold, pursuant to Estates Code subsection 255.451(a)(3), that the probate court correctly reformed the will by deleting the scrivener's error—the word "personal" before the word "property"—to make the will conform to Mr. Coleman's intent of disposing of all his property in his formal will, and we hold that the record supports the probate court's rejection of Nadine's claim that Howard violated the in terrorem clause. Accordingly, we affirm the probate court's judgment.

Background

Family History

Mr. Coleman was married to Rosa Marie Coleman until her death in 1989. The couple had five children together: Ellsworth, Carolyn, Nadine, Thomas, and Howard. Ellsworth predeceased Mr. Coleman in 2000. Mr. Coleman died on July 6, 2018 at the age of 80. He was survived by his children Carolyn, Nadine, Thomas, and Howard.

Before his death, Mr. Coleman suffered from kidney disease

and had not been in good physical health for many years. From 2000 to 2015, Howard and his wife, Vivian, had cared for Mr. Coleman in Mr. Coleman's home. In 2015, Mr. Coleman's health declined to the point where he had difficulty walking. Because he needed more care, Mr. Coleman moved to a nursing home, The Buckingham, on June 15, 2015. Howard and Vivian assisted Mr. Coleman in finding The Buckingham, and they were the only family members who helped Mr. Coleman move into the nursing home. Howard continued to assist Mr. Coleman while he lived at The Buckingham, and Howard paid for some of his father's nursing home costs. Howard testified at trial that, although his father's physical health had declined, Mr. Coleman remained "very coherent" while he lived at The Buckingham. Howard testified that he and his father played dominoes every day, and he indicated that he and his father remained close. While Howard's siblings sometimes visited their father, Howard and Vivian were the family members who primarily attended to Mr. Coleman.

The Handwritten Will

When he moved to The Buckingham, Mr. Coleman did not have a will. After the nursing home's staff inquired whether he had a will, Mr. Coleman wrote a will by hand that same day. Vivian was with Mr. Coleman when he wrote the will, and she saw him write most of it. Below is an image of Mr. Coleman's handwritten will:

As seen in the image, Mr. Coleman stated in his handwritten will: "I Howard E Coleman ... 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."

Sabina Gonzalez, a notary public employed by the nursing home, notarized Mr. Coleman's signature on the handwritten will. That same day, Mr. Coleman also signed a durable power of attorney, naming Howard as his attorney-in-fact, which Gonzalez also notarized. Howard was not present when his father wrote the handwritten will, but Mr. Coleman indicated to Howard the next day that the will stated his intent regarding his estate.

Preparation of Mr. Coleman's Formal Will

Mr. Coleman expressed concern to Vivian whether his handwritten will was valid, so Vivian suggested that an attorney, Chris Iverson, review the will. Mr. Coleman agreed, and Vivian faxed the handwritten will to Iverson. Iverson testified at trial that one-third of his practice was probate and estate matters, and he was experienced in drafting wills. After reviewing the handwritten will, Iverson indicated that he thought that the will was probably valid but recommended that Mr. Coleman execute a formal, self-proving will.

Vivian and Mr. Coleman talked about asking Iverson to prepare a will, and Mr. Coleman decided that Iverson should prepare a formal will based on his handwritten will. Vivian faxed Mr. Coleman's handwritten will and the power of attorney to Iverson. Vivian testified that she was the intermediary between Mr. Coleman and Iverson. On behalf of Mr. Coleman and at his request, Vivian asked Iverson to prepare a will based on what Mr. Coleman had written in his handwritten will. At no point did Mr. Coleman tell Iverson to prepare a will that was different than his handwritten will. Iverson testified that it was his intention to prepare a will that mirrored the handwritten will. In drafting Mr. Coleman's will, Iverson used a former client's will as the template. Iverson testified that, to make the will conform to Mr. Coleman's "wishes," he deleted "a lot of things" from the template.

Iverson prepared Mr. Coleman's will and sent it to Vivian. Mr. Coleman signed the formal will on August 19, 2015. Like the handwritten will, it was notarized by Gonzalez. The will reflects that David Wegner and Karina Denis were witnesses to the will's signing.

In 2016, Iverson was reviewing his client files in preparation of his retirement from the practice of law. He noticed that Mr. Coleman's will, signed the previous year, had not been printed in the correct format, which affected the document's pagination. The witnesses' initials, instead of being at the bottom of each page, had been pushed to the top of the next page. Iverson contacted Vivian and asked Mr. Coleman to re-execute the will printed in the correct format.

Mr. Coleman re-executed the will ("Final Will") on November 10, 2016. The Final Will had the same content as the will Mr. Coleman had signed in 2015, the only difference between the wills was the formatting to correct the pagination.

Gonzalez notarized the Final Will, and David Wegner and Karina Denis again witnessed Mr. Coleman's signing. At trial, Denis testified that she heard Mr. Coleman say that he was giving his property to Howard. Wegner testified that he and Mr. Coleman spoke at the time of the will signing. Mr. Coleman told Wegner that he owned "a piece of property" and that he was giving "his estate" to his son.

The Final Will named Howard as independent executor. It also stated that Mr. Coleman "intend[ed] that th[e] Will dispose of all property subject to [his] testamentary power." Paragraph 2.1 gave Mr. Coleman's "personal effects" to Howard. The will's residuary clause, Paragraph 3.2, provided as follows:

I [Mr. Coleman] give all my remaining personal property to my son Howard W. Coleman. If he shall not survive me, then that portion of my estate that would have passed to him shall pass instead to my daughter Nadine Odom. If she shall not survive me, then that portion of my estate that would have passed to her shall pass instead to my son Thomas B. Coleman. If all three of said beneficiaries shall predecease me, then my estate shall pass to my heirs at law.

As drafted by Iverson, the Final Will ...