Deadly Intentions: Posthumously Modifying Unambiguous Wills to Protect the Actual Intentions of Texas’s Testators

This comment proposes that Texas amend Texas Estates Code § 255.451 by changing some of the language and adding subsection (a)(4) and subsection (c).30 It asserts that public policy is best served by advancing a modernized law governing Texas courts’ ability to modify unambiguous wills. This comment begins with a discussion on the historical background on unambiguous wills and a general overview of the different types of ambiguities associated with wills. Following the background material, this comment briefly discusses a California Supreme Court case that revolutionized how courts handle unambiguous wills. Next, this comment introduces Texas’s newly codified statute, Texas Estates Code § 255.451, and summarizes the statute that overruled the Texas Supreme Court decision. It then provides analysis regarding the ramifications of section 255.451, and discusses the problems with Texas’s new statutory language.

The remainder of this comment focuses on comparing Texas’s new approach regarding extrinsic evidence and the reformation of unambiguous wills to other approaches; including those advanced by the Restatement, the Uniform Probate Code, and several other jurisdictions. Ultimately, this comment will suggest that Texas amend Texas Estates Code § 255.451 by changing some of the language and adding two subsections: subsection (a)(4) and subsection (c). Before concluding, the comment discusses how the amendment would affect the Johnson family hypothetical. Finally, this comment will conclude by discussing how the amendment would provide clarity for practitioners, eliminate the complex distinctions between types of ambiguities, and most effectively address the significant public policy interest in protecting testators’ intentions; providing courts with an avenue to ensure testators’ estates are distributed as intended.