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:

  1. the existence and exercise of an influence upon the testator,
  2. which operated to subvert or overpower the testator’s mind at the time the will was executed, and…
  3. 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:

  1. The nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence;
  2. The opportunities existing for the exertion of the type of influence or deception possessed or employed;
  3. The circumstances surrounding the drafting and execution of the testament;
  4. The existence of a fraudulent motive;
  5. Whether there has been an habitual subjection of the testator to the control of another;
  6. The state of the testator’s mind at the time of the execution of the testament;
  7. 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;
  8. The words and acts of the testator;
  9. Weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise;
  10. 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.

Update: In 2019, the Tyler court of appeals determined that undue influence had been exerted. The court noted the following factors were important in its ruling:

  1. The need for money by the influencer;
  2. The testator was dependent on the influencer for her care and transportation;
  3. The influencer’s reinterpretation of historical events in a negative manner about testator’s children’
  4. The influencer’s presence when the will was signed and the lack of presence of any family members;
  5. On an unnatural disposition, the court said “One of the main objects of the acquisition of property by the parent is to give it to his child; and that child in turn will give it to his, in this way the debt of gratitude we owe to our parent is paid to our children. Id. Thereby, each generation pays what it owes to the preceding one by payment to the succeeding one. This seems to be the natural law for the transmission of property. Any departure from that course, though it may not be uncommon or unusual, is unnatural.” 12-18-00079-CV.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Contesting a will in Texas

Zoom type workshops?

In the age of Covid-19. we have been thinking of having monthly or bi-monthly, free, Zoom type workshops where participants discuss with us issues that are of interest to them. There would be no agenda, we would discuss areas that the participants wanted to discuss. Participants could attend by computer, tablet or smartphone.

This would be a public Zoom type meeting so nothing personal or confidential should be discussed. Just general questions. Personal or confidential questions should be asked by using the Contact Us tab above.

If you think we should start having these workshops, please leave your email so we can notify you?

We will notify you if we decide there is interest in the workshops. Thanks for letting us know.

Pin It on Pinterest

Share This