## Facts

- Norman E. Brinker and Maureen Connally Brinker were married and had two children, Cynthia and Brenda.
- Norman and Maureen created an inter vivos trust (the Brinker Family Trust), naming Norman as settlor and naming “the issue of the settlor” as beneficiaries.
- In 1969, Maureen died, and her will directed that her residuary estate be paid into (poured over to) the inter vivos trust.
- In 1971, Norman remarried (to Magrit) and later had two additional children, Christina and Mark.
- In 1973, Norman transferred a portion of property traceable to Maureen’s residuary estate into a new trust arrangement he created for the benefit of Christina and Mark, including a Bahamian trust entity, Wobaco Trust Limited.
- By 1977, Norman and Magrit divorced, and Norman began reconsidering the later trust arrangement.
- Cynthia and Brenda filed suit seeking to construe or reform the trust instruments so that children of Norman’s second marriage would be excluded as beneficiaries, and they also sought constructive-trust relief concerning assets moved into the Bahamian trust.
- At a bench trial, the court refused to admit evidence offered by Cynthia and Brenda to show Norman’s and Maureen’s intent and to show that the trust language resulted from a drafting mistake.
- On appeal, Cynthia and Brenda relied on proffered testimony from Norman (that he and Maureen intended the trust to benefit only Cynthia and Brenda and that he did not understand the term “settlor”) and from the drafting attorney (that he understood the Brinkers’ intent was to benefit only Cynthia and Brenda and that any inclusion of later children reflected a drafting error; the attorney also acknowledged the Brinkers had not specifically instructed him to exclude any future children).

## Issues

1. Whether an inter vivos trust that receives a testamentary pour-over becomes “testamentary” in character in a way that bars equitable reformation.
2. Whether the trial court erred by excluding parol evidence offered to show the settlors’ intent and an alleged drafting mistake, where the plaintiffs sought reformation of the trust instruments.

## Decision

- The appellate court reversed the trial court’s judgment and remanded for further proceedings.
- The court held that an inter vivos trust does not become testamentary merely because a will pours assets into it, and therefore the trust was not insulated from equitable reformation on that ground.
- The court held the trial court erred in refusing to admit evidence of intent and mistake; the excluded testimony was admissible to raise a fact question on whether the instruments failed to express the settlors’ agreement because of mistake.

## Legal Principles

- Equity may reform an inter vivos trust instrument when the writing does not reflect the parties’ agreement due to mistake, applying the same general reformation principles used for other written instruments.
- Parol (extrinsic) evidence is admissible to prove mistake and the true agreement or intent supporting reformation, even if the instrument’s text appears clear on its face.
- A will’s pour-over into an existing inter vivos trust does not, by itself, convert that trust into a purely testamentary arrangement; statutes authorizing testamentary additions to trusts support treating such trusts as inter vivos for these purposes.
- Reformation requires proof of a mistake that caused the writing to fail to state the intended terms; a trial court should allow the offered proof when it creates a fact dispute requiring resolution.

## Conclusion

*Brinker v. Wobaco Trust Ltd.* did not finally decide whether the phrase “issue of the settlor” included children from Norman’s second marriage; instead, the court focused on whether the plaintiffs were entitled to try to prove, through extrinsic evidence, that the trust instruments were drafted by mistake and failed to state Norman’s and Maureen’s intended beneficiary class. Holding that an inter vivos trust remains inter vivos despite a testamentary pour-over and that parol evidence is admissible to prove mistake and intent in support of reformation, the appellate court reversed the exclusion of that evidence and remanded for further proceedings.


Brinker v. Wobaco Trust Ltd., 610 S.W.2d 160 (1980)