In a previous article, I noted that in a case involving undue influence in contesting a will in Texas, the elements of undue influence are:
- the existence and exercise of an influence upon the testator,
- which operated to subvert or overpower the testator’s mind at the time the will was executed, and...
- such that the execution would not have occurred but for the undue influence.
10 Factors To Determine Undue Influence In Texas
Some Texas courts have listed 10 factors to determine if the three elements of undue influence existed. They analyze the following ten factors to
determine whether the evidence establishes the elements of undue influence:
- The nature and type of relationship existing between 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 an habitual subjection of the testator to the control of another;
- 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;
- Whether the testament executed is unnatural in its terms of disposition of property.
Factors one through five relate to the first element; factors six through nine relate to the second element; and the tenth factor relates to the third element. The factors are not equivalent to the elements of undue influence, and proof satisfying every factor is not necessary to support a finding of undue influence. 13-16-00091-CV; 69 /3 598.
Courts have long recognized that the exertion of influence that was or became undue is usually a subtle thing and by its very nature usually involves an extended course of dealings and circumstances. Thus, direct evidence is usually not available so it may be proved by circumstantial evidence.
...even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion.
Proving undue influence in a Texas will contest is difficult. Three elements and 10 factors? It is easy for someone not familiar with Texas inheritance and probate law to get lost.