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.

Follow Us

Let Us Help You

Facts

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.

Evidence

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.

Join the List

Who and What we Are

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).
~

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.

Let Us Help You

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. To set aside a will on the basis of a claim of undue influence the contestant must 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, and physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser. 

Follow Us

Let Us Help You

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.”

There is an article on our blog about relationship poisoning and undue influence.

Relationship Poisoning And Undue Influence

You should not take, or refrain from taking, any action based on this article. You should discuss your situation with your attorney who can advise you based on your situation.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Join the List

Who and What we Are

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).
~

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.

Let Us Help You

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.

Follow Us

Join the List

Let Us Help You

Contesting a Will Because of Lack of Testamentary Capacity

Contesting a Will Because of Lack of Testamentary Capacity

The most successful ground for contesting a will in Texas is lack of testamentary capacity. As people age, it is easier and easier to have them make a new will that they would not make if they had their full mental faculties. There may be a number of causes – both in legal and in psychological terms – that might diminish a person’s testamentary capacity, but the result of each is often the same: any wills they may have created while lacking testamentary capacity may be overturned.

I have a checklist of the requirements needed to show testamentary capacity at trial. The checklist is repeated below.

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.

Follow Us

Join the List

Let Us Help You

Contesting a Will Because of Fraud in the Factum

Fraud in the Factum” occurs when a testator is misled as to the nature or content of the instrument being executed. A mistake of fact or law must be accompanied by evidence of fraud or undue influence to defeat the will’s admission to probate.

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 Because of Improper Execution of the will

Contesting a Will Because of Improper Execution of the will

n Texas, wills must be executed with proper formalities. If it is not executed with those formalities, the will will not be admitted to probate and the deceased’s property will go to his heirs through the law of descent and distribution. In other words, the deceased will die intestate (without a will.)

Proper execution generally requires that:

  1. The will be in writing;
  2. Signed by the testator;
  3. It must be signed with testamentary intent;
  4. The testator must know and understand the contents of the document; and
  5. If not wholly in the handwriting of the testator, it must be witnessed by two credible witnesses who sign the will in the presence of the testator.

Witnesses

In a 2016 case, the proponent of a will tried to probate it where her brother was the only witness to testify. The other witness was too ill to come to court and testify. Since she only had one witness instead of the required two, she said that the notary’s signature should be used as the second witness. The notary was not called to testify. The court distinguished those case where a notary was considered as a witness even though she didn’t sign as a witness. The court noted in all those case, the notary was called as a witness and testified. The court declined to admit the will to probate because of improper execution, e.g. it only had one witness.

In a 2009 case, a husband and wife signed a joint will, there was only one witness. The appeals court allowed the husband’s will to be probated by ruling that the wife’s signature on the will plus the signature of the one witness satisfied the requirement that there be two witnesses. 346 S.W.3d 1.

Signature placements and marks

Texas is very lenient about what can constitute a signature and where it appears in a will. Initials and the mark “X” have been upheld as valid signatures on a will. I have written about that issue on my blog and you can read it here. The placement of the signature on the will is also treated leniently by Texas courts. I have also written about that issue on my blog and you can find it here. Both of these issues e.g. placements and marks for signatures lead to will contest in Texas. Because it is not an ordinary will and an ordinary signature there are many issues that the court must decide before the document is admitted to probate.

Corrections to a will in Texas

Once a Texas will is properly executed, pages cannot be changed or replaced unless the will is re-executed with the same formalities required of a new will.

In a case decided in 2013, a Texas Court of Appeals had to decide an issue relating to the time frame in which corrections of some of the pages in a will occurred. There was no question that the will contain mistakes and that they were corrected. The question was whether the corrections were made after the will was executed or before. The first thing that the court ruled on was who had the burden of proof. They ruled that the person who was claiming the will was corrected after it was executed had the burden of proof. While there was some conflicting evidence, the trial judge ruled that the corrections were made before the will was executed. The appeals court ruled that the person claiming that the will was executed before the corrections were made did not meet their burden of proof and therefore ruled against them. No one stated directly that the will was corrected after it was executed. There was just some circumstantial evidence that the attorney took the will back to his office at one point, made the corrections and returned but no one said definitely this took place after the will was executed. The will was admitted to probate. No. 05-11-00246-CV.

In a 2018 case, the appeals court described it as follows: “This is the case of the blinking testator. In October 2015, Michael Lynn Luce was in a serious accident that left him a quadriplegic. A week after he was admitted to the hospital, Michael was intubated, which rendered him unable to speak. Paralyzed from the chest down and unable to speak, Michael was able to communicate by blinking his eyes to indicate “yes” and “no.” Using this blinking system, Michael’s attorney was able to draft a will based on Michael’s blinked responses to a series of leading questions, and through this system, Michael directed a notary to sign the will for him.” The court thought the blinking system was sufficient to establish Testator’s directions, therefore, the will was validly executed. 02-17-00097-CV.

For a discussion on what order the parties must sign the will, click here.

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