A will can be denied probate because the testator was under undue influence when the will was executed. What evidence is sufficient to answer the question What influence is “undue?” 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 one son was the main beneficiary of his mother’s new will. The children of two other siblings contested the will alleging undue influence. The court discussed what influence was undue. The 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. The evidence from the grandchildren showed that the testator was fair and equal in prior wills when it came to her family. 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 said that the evidence was enough to prove undue influence. 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.
Does a testator have to have testamentary capacity to be unduly influenced? Said another way, can an incompetent testator be unduly influenced? I have written about that issue here.
Can undue influence be as simple as a strong mind over a weak one? I have written about that here.
Can relationship poisoning be undue influence? I have written about that here.