Void Versus Voidable Marriages

Void Versus Voidable Marriages

Void versus Voidable

In a recent Texas case, Allebach v. Gollub, 14-22-00272-CV, the issue of void versus voidable marriages came up. There is a difference in the way the courts treat void marriages as opposed to voidable marriages. A void marriage is just that, void. A voidable marriage is one that can be declared void but someone must take some action to get it voided.

A man remarried after his wife died. When the man died, the new wife filed a new will for probate that left most of his estate to her. The Man’s children from the first marriage contested the will on the basis that the man lacked the testamentary capacity to make a new will. They also alleged that the marriage to the new wife was void. It was void, according to them, because the new wife was the daughter of their father’s biological sister – she was his niece. The new wife said the children were too late to contest the marriage because they didn’t complain about the new marriage until four years after the man died.

Is it too late?

There is a provision in the Texas estates code, §123.102, that says an interested party must contest a marriage within three years of the date of death of the Decedent. The subchapter is titled “Proceeding to Void Marriage Based on Mental Capacity Pending at Time of Death.”

The new wife said that this provision applied and since the children had not filed their motion to void the marriage within three years, the limitations of that provision applied and they were too late.

The court examined §123.102 and found that it applied to voidable marriages but not void marriages. The court explained that the marriage to a close relative was void and not voidable. Different rules are applied to void marriages. The court pointed out that:

And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.” See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.-Waco 1949, writ ref’d)…Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations.

When you need to contest a marriage of someone who dies, you have to know the difference between void versus voidable marriages. If the marriage is void, as it was here, it can be contested at any time by anybody. However, if you are contesting the marriage because a person lacks mental capacity, you have to contest it within three years of that person’s deat.

How bad people use undue influence

How bad people use undue influence

This article is about ways that people exert undue influence in Texas to obtain the property or estate of others.

Undue influence can take many forms. In a 2020 Texas case, Buford, a man with a below average IQ hired a private investigator, Tait, whose name he found in a phone book, to help him. Tait’s assistant was Irene Rueda.

Undue influence example. Tait and Rueda soon began providing Buford with other services, including cleaning, cooking, bill paying, shopping, and running errands. In fact, Rueda testified that she saw Buford almost every day for three years until his death in August of 2015. During these three years, Tait and Rueda submitted numerous invoices to Buford, billing him tens of thousands of dollars for their investigation and other services. In addition, Buford gave both Tait, Rueda, and their family members bonuses and gifts, including a $5,000.00 gift to Tait’s wife, despite the fact that Buford had admittedly never met his wife. In addition, the record contains evidence that Buford made large cash withdrawals from his account during the time that Tait and Rueda were providing services to him, some of which were signed by Tait, acting on Buford’s behalf.

Tait prepared wills

Buford did not have a will when he first met Tait and Rueda. Several wills were prepared by Tait and signed or written out by Buford. The will gave Tait and Rueda all of the real and personal property and $300,000 to Tait and $200,000 to Rueda. The total value was about 2.4 million dollars.

When the will was filed for probate, the cousins of Buford, his closest relatives, contested it. The jury ruled that the will were written under undue influence. Tait and Rueda appealed.

The appeals court, in addition to the above facts, set out the evidence supporting the jury verdict including:

  • Emails from Tait the he was “working” on Buford to make a will.
  • Bills from Tait for helping Buford prepare his will.
  • Tait had taken over virtually all of Buford’s legal affairs.
  • Tait accompanied Buford to every meeting with others.
  • Tait himself admitted that he could influence Buford to add provisions to his will.
  • After making the first will, Buford told someone that he had not yet decided what to do with his property.

Every case is different but undue influence is based on the overall conduct that is taking place and who benefits from it.

If you believe a loved one has been the subject of undue influence, you must act quickly. Remember, the two year statute of limitations for contesting a will doesn’t change even if the will is the result of undue influence.

Undue Influence in Texas can Invalidate Wills, Deeds, and Other Instruments

Relationship Poisoning And Undue Influence

When Can a Texas judge change or reform a will

When Can a Texas judge change or reform a will

Contesting a will in Texas

When can a Texas judge reform a will?

The Texas Estates Code, 255.451, says a Texas judge can reform a will or modified it in certain circumstances. The same is true of a trust. Prop. C. 112.054. In a 2019 case, 06-19-00014-CV, a trust was modified by the trial court. The appeals court reversed the modificaiton.


A man and woman were married. 06-19-00014-CV. The wife had a child, Edna. The husband adopted Edna. Thereafter, they had two children between them, Ignacio and Esperanza. At some point, they created a trust.

The first Trust article, labelled “Identification,” read, “The Grantors have two children, their daughter, ESPERANZA GONZALES and son IGNACIO G. GONZALES, JR. All references in this Declaration of Trust to the `Grantors’ children’ are to them. The term “children” was never used again. The trust only used the term “descendants” after that. Edna’s name was not in the trust.

There was one blank in the document that said “all of the remaining trust property shall be distributed to the Grantors’ [_____].” Ignacio and Esperanza asked the trial judge to reform the will and fill in the blank with “children.” Edna opposed that and wanted the blank to be filled in with the term “descendants” that was used in all the provisions that disposed of property. The trial court reformed the trust by inserting “children.” Edna appealed.


The appeals court reversed. It discussed the law about the ability of a Texas judge’s ability to reform a will or a trust based on a scrivener’s error (a mistake made by the attorney preparing the document as opposed to a mistake by the clients.) They noted that the person seeking the reformation had a high burden. A clear and convincing burden of proof which Ignacio and Esperanza did not meet.

The court agreed that there was a scrivener’s error but it could have been leaving Edna out of the Identification paragraph as well as not filing in the blank. They sent the case back to have these issues tried by a jury.

What should you know

A Texas judge can reform a will. If there is a will or trust that has errors in it, a court can correct those errors in certain circumstances.

Evidence of Undue Influence

Evidence of Undue Influence

What is undue influence in Texas?

  1. The existence and exertion of an influence;
  2. That the influence subverted or overpowered the mind of the testator at the time of the execution of the testament; and
  3. The maker would not have executed the testament but for that influence.

The exercise of undue influence may be accomplished in many different ways–directly and forcibly, as at the point of a gun; but also by fraud, deceit, artifice and indirection; by subtle and devious, but none-the-less forcible and effective means. The Texas Supreme Court has said “undue influence may take the form of “force, intimidation, duress, excessive importunity or deception used in an effort to overcome or subvert the will of the maker of the testament and induce the execution thereof contrary to his will.” Undue influence can be established by direct or circumstantial evidence.

This article will discuss a 2020 case where the court found undue influence and denied a will (three wills, actually) to probate. 08-19-00011-CV.


The decedent, Buford, was below normal in intelligence. He was never married and had no children. His parents and only sibling had predeceased him without leaving wills. He “had a below average IQ and some cognitive impairments, did not graduate from high school until he was 22 years old, and was never regularly employed outside of working on his family’s ranch.” In other words, he was a prime candidate for being taken advantage of.

His estate, what he had inherited from his mother was, as the court said “not insubstantial.”

He became acquainted with a private investigator, Tait, and a friend of his, Rueda. They were able to get him to make several wills over a period of time that left most of his property to the private investigator and his friend. The last two wills were signed when he was in the hospital during his last illness. Shortly after his death, they probated the latest will. When the decedent’s cousins contested that will, the private investigator and his friend brought up the other two wills saying that if the last will was denied probate, then they wanted one of the other two will admitted to probate.


Buford did not have a will when he first met Tait and Rueda, and as early as August 2012, Tait began discussing the need for Buford to sign various legal documents, including a will, a trust instrument, and a power of attorney.  All three of the wills involved were prepared by Tait who was not an attorney. The wills would have given Tait and Rueda the majority of Buford’s estate or control over the majority of the estate. Buford signed a power of attorney giving Tait the right to make personal, financial, and other decisions on Buford’s behalf.

Buford was admitted to the hospital on July 19, 2015 and diagnosed with terminal esophageal cancer; he died a month later. On his second day at the hospital (July 21, 2015) Buford signed another will that Tait had drafted (the “July Will”). The will signing was videotaped by Tait. In the videotape, Buford is seen lying in a hospital bed as Tait summarized the terms of the will. In his summary, Tait told Buford: “You’ve made bequests to several different people, you’ve made bequests to me, you’ve made bequests to [Rueda] [and] you’ve made the majority of your bequests to the Buford Scott Charitable Trust, right?” However, the majority of the bequests were to Tait and to Rueda, not the trust.

Worried that there was a problem describing the trust, Tait prepared another will, the August 2015 will.

It further stated that Tait “shall have the sole and final authority to determine what type of business entity . . . shall be formed and what provisions it shall include, so long as it fulfills my desire to provide help to people who face an unfair judicial system, or incompetent and unscrupulous lawyers.” The will provided that the Charitable Trust was to be funded by certain mineral and leasing rights that Buford owned in both Texas and Oklahoma. The record contains evidence that Tait was aware at the time Buford signed the August Will that the leasing rights were not producing, and that they were valued at only $32,500.00.

With the exception of Buford’s household furniture and clothing, which he gave to Goodwill, the August Will gave Tait and Rueda all of his real property and his personal property, in addition to $350,000 in cash to Tait, and $200,000 in cash to Rueda. The Will further named Rueda’s children and Tait’s wife as alternate beneficiaries in the event they predeceased him. In the will, Buford stated that the bequests were made to Tait and Rueda, due to his gratitude to them for assisting him with his legal problems and for helping him through his final illness. The bequests given to Rueda and Tait in the August Will were valued at approximately 2.4 million dollars.

The Jury Trial

The case was tried in front of a jury which found that all three wills were the result of undue influence. They also denied the private investigator and his friend attorney’s fees finding that the did not act in good faith. Tait and Rueda had asked for $416,978.75  in attorney’s fees because, they claimed, they had acted in good faith. The jury said no!

The Lessons to learn from this and similar cases.

  1. Vulnerable people attract crooks and con artist.
  2. If the vulnerable person has money or property, the bad people will work hard to get that property.
  3. The only thing standing in the way of the bad guys is a family member who challenges these bad wills.
  4. Sometimes, the bad guy may start out as a good guy helping out the vulnerable person.
  5. The “good” guy then turns into a bad guy when he/she sees an opportunity to exploit the vulnerable person.
  6. Money does strange things to people. And,
  7. Family members need to be vigilante if they have a vulnerable person in their family.
Contesting a Will Because of Undue Influence

Contesting a Will Because of Undue Influence

Contesting a Will Because of Undue Influence

The inheritance rights of loved ones are defeated if the testator is under the undue influence of another. Contesting a Will Because of Undue Influence requires the contestant to prove:

  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.

The doctrine of undue influence derives from English courts.  A will contest heard by Sir Francis Bacon as the Lord Chancellor of England in 1617 illustrates common aspects of the process of undue influence which emerged in the context of a will contest.  These aspects include frail health, physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser.

The courts have defined the question as whether “. . . the testator’s free agency was destroyed and . . . his will overcome by excessive importunity, imposition or fraud, so that the will does not, in fact, express his wishes as to the disposition of the property, but those of the persons exercising the influence.”

“The exercise of undue influence may be accomplished in many different ways – directly and forcibly, as at the point of a gun; but also by fraud, deceit, artifice and indirection; by subtle and devious, but nonetheless forcible and effective means.”

Undue influence “may be exercised through threats or fraud or the silent power of a strong mind over a weak one.”

Relationship poisoning may be a sign of undue influence.

Contesting a Will Because of Undue Influence is one of the grounds for will contest in Texas. Undue influence can also be used to set aside deeds, contracts, bank accounts, or other documents.

Testamentary Capacity Checklist

Testamentary Capacity Checklist

Testamentary Capacity Checklist

In Texas, a testator has to have testamentary capacity to make a will. A testator has testamentary capacity if, at the time the testator signs a will, he –

  1. has sufficient mental ability to understand that he is making a will, and
  2. has sufficient mental ability to understand the effect of his act in making the will, and
  3. has sufficient mental ability to understand the general nature and extent of his property, and
  4. has sufficient mental ability to know his next of kin and natural objects of his bounty and their claims on him, and
  5. has sufficient memory to collect in his mind the elements of the business to be transacted and to be able to hold the elements long enough to perceive their obvious relation to each other and to form a reasonable judgment as to these elements.

Notice that there is an “and” after each of these. A testator must have all of these qualities not just some or most.

Testamentary capacity is never presumed due to the statutory requirement that “sound mind” be proved by the proponent of the will.

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