Are you interested in contesting a will that is being presented to a court for probate? If the answer is yes, then it is important to know the legal grounds upon which a contest can be made. The first question a court will ask is — why? — why are you challenging this will? The contestant must be able to answer this question because contesting a will is serious business — you are essentially asking the court to declare the will to be invalid and cast it aside. 

Undue influence is one of the most common grounds for a will contest. If a person makes a will while subjected to an undue influence, then the end result is a will that does not reflect the true wishes of the testator, but rather that of the person exerting the influence. Under Texas law, to invalidate a will based on undue influence, one must prove the following by a preponderance of the evidence:

Element One: Actual Influence

First, one must establish that there was in fact an influence by another person upon the testator. That influence must have been exerted before the testator signed the will. Generally, your argument is at its strongest when you show that the testator was subjected to the influence immediately before the signing of the will. In fact, perhaps the most damaging evidence in a will contest based on undue influence is that which shows that the alleged influencer not only interacted with the testator right before he or she signed the will, but that the influencer was involved in the drafting of the will or was actually present in the room when the testator signed the will.

However, even with this evidence, something more is generally required for the will to be invalidated. Under Texas law, the opportunity to exert an undue influence does not automatically mean that an undue influence was actually exerted. However, such evidence gets you almost all the way there. In the end, a jury will decide if the facts of your particular case constitute an undue influence.

Even though the exertion of influence must occur before the testator signs the will, it does not necessarily have to occur immediately prior to signing. A jury can find undue influence if the influence was exerted periodically over months or even years. For example, this is precisely what happened in the case of In re Estate of Johnson, 340 S.W.3d 769. (Tex.App.—San Antonio 2011, pet. denied). In this case, the children of the testator contested their father’s will, which devised property to his second wife. They presented evidence showing that the testator was unduly controlled by his wife, throughout the duration of their marriage, and that she effectively poisoned his relationship with his children by continuously making negative remarks about them. Even though it was a close call, the jury returned a finding that the testator had been subjected to an undue influence.

Fraudulent inducement is one particular type of undue influence that we often see. This occurs when a testator, in signing a will, relies on a material misrepresentation about some extrinsic fact that was (1) made with knowledge of its falsity or made recklessly, as a positive assertion, and without knowledge of its truth, and (2) made with the intent to induce the testator to sign the will. The misrepresentation can be (1) a false statement of fact, (2) false statement of opinion, (3) false promise of future performance, or (4) false representation by conduct. If any of these can be proven in a will contest, the court can enter a finding of undue influence.

Element Two: The influence must overpower the mind of the testator

However, simply obtaining a finding of actual influence upon the testator is not enough to invalidate a will. The undue influence must have actually overpowered the testator’s mind. A person may plead with the testator to write a favorable will, but the influence is not undue unless it is so excessive that it overpowers the testator’s mind. This can be one of the closest calls that jury can make in a will contest. A person can plead with someone to change his or her will in that person’s favor, and successfully convince the testator to make the requested changes. However, this influence is not necessarily “undue influence”.

To determine whether there was undue influence, courts generally look for certain characteristics that indicate that the influence went too far and overpowered the testator’s mind. This generally requires looking at the testator’s mental and physical capacity to resist and trying to understand their particular susceptibility to influence. Such susceptibility can be found for various reasons. For example, testators may be advanced in age, may have a mental illness, or a disease like Alzheimer’s that effects their mental processes. Such susceptibility can also be found if the testator was suffering from a temporary impairment. For example, a jury could find that a testator’s mind was in a particularly weakened state if the testator was recovering from stroke, experiencing intense physical pain, or if the testator suffered from an addiction to alcohol or other substances.

Element Three: The undue influence resulted in the making of the will

This element requires that the undue influence must have been the cause of the will. To have causation, the will must dispose of property in some form of unnatural manner. A jury will likely not return a finding of causation if the person who exerted the undue influence would have naturally received the same inheritance anyway. However, if the will is contrary to how the testator wanted to distribute his or her property, then any undue influence will likely be deemed to have caused the will that was made.

Even when there is an unnatural property disposition, it will not be deemed to have caused the will so long as there is a reasonable explanation for the disposition. For example, let’s say that a charitable organization convinces the testator to leave all their property to the charity. This would naturally disinherit all of the testator’s children. Such a will would seem to produce an unnatural property disposition and would likely be subject to a contest on the grounds of undue influence. However, suppose the testator just retired from a forty-year career working with the charity and always spoke well of them? Now a reasonable explanation exists for making an unnatural property disposition. Likewise, if the testator’s children treated the testator negatively or had not spoken to the testator for the last ten years of his life, this fact would also be considered a reasonable explanation for why the testator chose to make an unnatural property disposition in his or her will.

Law Offices Joseph E. Seiler Northwest Houston
Joseph E. Seiler focuses on helping individuals and families with their probate administration, estate planning, inheritance, and trust law needs. He is affiliiated with several prominent legal organizations, including:

State Bar of Texas

Texas Supreme Court

All Texas Appellate Courts

United State Federal Court for the Southern District of Texas

Houston Bar Association

Northwest Houston Bar Association

You will receive focused personal attention and speak directly with Mr. Seiler. Our attorney communicates promptly with each client, treats them with empathy, and is eager to help them with their legal needs. Through knowledgable and diligent representation, Mr. Seiler works to protect each client’s rights as he assists them with their legal matter. To schedule a free consultation with Mr. Seiler, please call (713) 343-1450

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