What influence is “undue?”
Posted on | March 29, 2010 | No Comments
A will can be denied probate because the testator was under undue influence when the will was executed. What evidence is sufficient to prove undue influence is case specific. What may be considered by a jury as undue influence in one case may not be in another case.
Undue influence implies the existence of testamentary capacity in the testator that was subjected to and controlled by a dominant power or influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963); Green v. Earnest, 840 S.W.2d 119, 121 (Tex.App.-El Paso 1992, writ denied). Before a will may be set aside on the ground of undue influence, the contestant must prove:
• the existence and exertion of an influence;
• the effective use of that influence to subvert or overpower the mind of the testator at the time the will was executed; and
• the execution of a will which the testator would not have executed but for such influence.
In a case out of El Paso, a son testified that he contacted the attorney, instructed him as to the will’s contents, and then took his mother to the attorney’s office. He was, in fact, “the one that dictated what to do and what we wanted.” He also testified that “(w)ell, she said you take care of it before we ever went up there — before we ever went to his office. Said, now, you do — if they don’t want to offer anything, you take care of it because I can’t. She said she couldn’t function enough to — she didn’t know enough about it, in other words, how to fix it and everything.” He also confirmed that his mother deferred to him “on all matters,” including financial matters. That evidence from the proponent of the will along with other evidence showing that the testator was fair and equal when it came to her family was enough to prove undue influence. One relative testified that with the exception of the 2002 will, all previous wills were set up to distribute her estate in equal proportion to each of her children, and then to their decedents, per stirpes.
The court held “(t)here is ample evidence to show (1) the existence and extension of an undue influence by (the proponent) in the procurement of the 2002 will; (2) the effective operation of such influence so as to subvert or overpower the (testator’s) mind when executing the document; and (3) (the testator) would not have executed the will but for (the proponent’)s influence. Indeed, some of the strongest testimony came from (the proponent) himself.
Pearls of wisdom: If you are contesting a will, the domination of the testator by another, even a son, may invalidate the will.
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