Wednesday, May 29, 2019
In a recently decided case, a woman in Texas executed a will while going through a divorce which was never finalized because she passed away. During the divorce, a sister of a friend started taking the decedent to doctor appointments and assisting with other tasks. The will that was executed named the new friend as sole beneficiary. The daughter of the decedent challenged the new will, and after a bench trial it was denied to probate due to undue influence.
The friend appealed the decision. To establish undue influence, a contestant must show the following: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. The woman was estranged from her children because they had taken their father's side on some of the issues in the divorce, and the daughter claimed the new friend "froze her out" and would not allow her to repair her relationship with her mother. The friend also had a deferred adjudication for a theft and required to pay restitutions of over $38,000, and the decedent's estate was valued at $28,000 at the time of her death. The court held that the evidence was legally and factually sufficient to support the trial court’s findings that an influence existed and was exerted by the friend.
The decedent had health issues that caused her to need assistance in transportation to appointments and the hospital, and the court found that the woman became dependent on the friend for these needs. The decedent was also lonely because of the circumstances and the friend became deeply involved in the divorce proceedings. The court concluded that this evidence was sufficient to establish that the decedent was incapable of resisting her susceptibility to the influence. The decision was affirmed.
See David Fowler Johnson, Court Affirms Finding of Undue Influence Regarding Execution of Will, Texas Fiduciary Litigator, May 25, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.