Creating a valid will in Texas offers peace of mind for family members as well as for the person writing the will, known as the testator. In certain cases, however, the validity of the will may be challenged in court. As Baby Boomers are aging, many are moving into assisted living and nursing facilities, where they may develop close relationships with caregivers. The aging and the ill often must rely on pain medications, such as morphine, which dulls their pain, but which also impacts their reasoning. In cases of undue influence, a person benefits by taking advantage of a another’s weakened cognitive abilities. Such circumstances have resulted in an exponential increase in probate litigation. Fortunately, Texas probate law offers protections for the sanctity of a valid will, including statutes protecting estates from undue influence. See Long v. Long, 125 S.W.2d 1034, 1035 (1939).
Elements of Undue Influence
In the case of Rotherman v. Duncan, the Courts determined that to prove undue influence in probate court, three elements must be present: “(1) the existence and exercise of an influence upon the testator, (2) which operated to subvert or overpower the testator’s mind at the time the will was executed, (3) such that the execution would not have occurred but for the undue influence.”
Texas courts consider the following when determining whether or not the case meets the first element:
- “The nature and type of relationship existing between the person writing the will, the testator, the contestants and the party accused of exerting such influence;
- The opportunities existing for the exertion of the type of influence or deception possessed or employed;
- The circumstances surrounding the drafting and execution of the testament;
- The existence of a fraudulent motive;
- Whether there has been a habitual subjection of the testator to the control of another.”
Texas courts consider the following when determining whether the case meets the second element:
- “The state of the testator’s mind at the time of the execution of the testament;
- The testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted;
- The words and acts of the testator;
- Weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise.”
Texas courts consider the following when determining whether or not the case meets the third element:
“Whether the testament executed is unnatural in its terms of disposition of property," meaning that the disposition of assets is illogical, unreasonable, or not reflective of the testator’s previously expressed desires, such as making the third party the sole benefactor instead of the testator’s children.
Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).
Litigating Undue Influence
According to Texas Estates Code § 256.204, a party has two years to contest a will in court. However, if the claim involves fraud of any kind, the deadline is often extended. Most states presume undue influence if the testator is frail when changes to a will are implemented. Proving undue influence may be more difficult in Texas, however, because the party who claims undue influence has the burden of proof. When contesting a will based on undue influence, the party must provide factual evidence of each of the three required elements. Gathering documentation, talking with friends, family members, and caregivers to gather evidence, or even hiring an investigator may be necessary because the burden of proof is on the person contesting the will.
Circumstantial evidence has sometimes been enough to contest a will, but not often because “the circumstances must be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised but that it controlled the will power of the testator at the precise time the will was executed.” Green v. Earnest, 840 S.W.2d 119, 120 (Tex. App.—El Paso Oct. 7, 1992) (citing Kirkpatrick v. Raggio, 319 S.W.2d 362, 366 (Tex. Civ. App.—Fort Worth, writ ref’d n.r.e.).
Successful Court Proceedings
If the contesting party proves his or her case in court, the will may be deemed invalid. Transfers of assets would then be void, and the will itself would be canceled. In some cases where the changes are less substantial, courts have simply modified the will to reflect its original state.
The rising number of cases involving undue influence reflects an growing concern for testators and their families. Because the burden of proof is on those contesting the will, working with an experienced probate attorney is key to navigating the elements of undue influence and ensuring that the outcome aligns with the testator’s intent.
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