Can a Probate Court Change a Will that Includes a Mistake?

What if a loved one executes a will based on a faulty assumption? What if you can prove the error? For example, what if a loved one fails to include a family member in their will because they mistakenly believe that family member is already provided for outside of the will? Can the omitted family member inherit under the will if you can prove that the loved one was mistaken?
Carpenter v. Tinney, 420 S.W.2d 241 (1967), is a case that addresses this exact situation.

Facts & Procedural History

This case involves a daughter who challenged her mother’s will. The mother had made her will eight months before her husband died.

The mother’s will essentially left everything to her two sons while excluding her two daughters. According to the facts of the case, the mother omitted her two daughters from her will because she believed her husband had executed a will that included the two daughters. The mother desired that the distributions be equal among the four children.

After her husband died, the mother lived for another two years. The will was challenged by the daughter. She argued that the court should amend the will to reflect an even split of the assets among all beneficiaries named in the Will, rather than the specific amount bequeathed.

The probate court refused to amend the will, which resulted in the appellate court’s decision. The appellate court had to decide whether the probate court should amend a will due to a mistake of fact.

What is a Mistake of Fact?

A “mistake of fact” is just what it sounds like. It is a mistaken belief about some fact that leads to an incorrect decision or action. The court cases provide examples.

The testator in Holmes v. Campbell Coll., 87 Kan. 597 (1912), stated in her Will that the remainder of her estate would go to Campbell College after specific bequests to the other heirs. The remainder of her estate was more than twice as large as she had anticipated. The court agreed that if the testatrix had known the exact value of her estate, she would have written her will differently. The provision could not be removed from the will simply because it was the result of a factual error on her part, the court ruled. “This would be in effect to reform the will,” the court concluded, “and the court possesses no such power.”

Another example is the case of Johnson v. Moore, 223 S.W.2d 325, (Tex. Civ. App.–Austin). Here, the court held that property forgotten or overlooked by the testator, or property he did not know he owned may be devised under a residuary clause, even if the testator did not know he had the rights to the property (a residuary clause is a clause that means everything leftover, not explicitly listed in a will, is to be left to a certain person or group). The court ruled that no matter how much the property might be worth, it still will not defeat the probate of the will.

A mistake of fact is different than a fraudulent promise. The court in Carpenter specifically addressed this. It rejected the claim that the mistake of fact is analogous to a fraudulent promise that would allow the court to rewrite the decedent’s will. The court refused to amend the will in Carpenter even though the testator was mistaken as to her beliefs about her deceased husband’s will.

Do Courts Have the Ability to Change a Will When There is a Mistake of Fact?

As the court cases cited above show, there is no statutory law or case law that supports the notion that the probate court has the authority to alter a will because of a mistake of fact.

This is not to say that the probate court can never change the terms of a will. Section 255.451 was added to the Texas Estates Code by the Texas legislature in 2017.

According to Section 255.451, the probate court can modify the terms of a will to:

  1. prevent waste or impairment of the estate’s administration,
  2. achieve the testator’s tax objectives or to qualify a distributee for government benefits and is not contrary to the testator’s intent,  or
  3. correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.

If a party files a petition before the fourth anniversary of the date the will was admitted to probate, the court has jurisdiction to modify the terms of the will for these reasons.

The Takeaway

The case of Carpenter v. Tinney demonstrates that a mistake of fact that impacted the terms of a will cannot be corrected by the probate court. If the will was created by a person who possessed all of the legal requirements to execute the will, then the estate will be distributed according to a strict textualist reading of the will. The only situations in which a court will intervene with an otherwise valid will are those specified in the Texas Estates Code, such as correcting a scrivener’s error in the will.