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June 26, 2017

Contesting a Will

In Texas (as in many states), if a beneficiary contests the will and loses, and if the will contains a no-contest clause and it is given effect, the beneficiary forfeits her legacy.  There is a very narrow exception that would allow the beneficiary to receive the designated benefits under the will which requires the court to find that, even though the beneficiary loses the will contest, she brought the action in good faith and had just cause to contest the will.  Tex. Prop. Code § 254.005; see Hammer v. Powers, 819 S.W.2d 669 (Tex. App.—Fort Worth 1991, no writ) (held in favor of will based on the affidavits and testimony provided).

Testamentary Capacity.  As is true in most states, a will can be contested at the time the will is offered for probate, or within two years after the will has been formally admitted to probate (i.e., after due execution has been proved).  In fact, most will contests are filed within that two-year period after the will has been probated.  Once the will has been admitted to probate, the burden as to testamentary capacity shifts to the contestant.

At the time of executing the will, the testator must have had sufficient capacity to: understand the nature of the act he was doing; know the nature and character of his property; know the objects of his bounty; and understand the dispositions he was making.

Capacity to make a will may exist even where capacity to make a contract does not.  The fact that a testator was committed to a mental hospital shortly before and shortly after executing a will, while of strong probative force, is not conclusive evidence of lack of capacity; a juror may still find the testator met the four-point test above.  Likewise, evidence that the testator was old, feeble, and in poor health is, by itself, insufficient to establish a lack of testamentary capacity.  Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980).

Evidence of lack of testamentary capacity at times other than the time of execution can be used to establish incapacity on the date the will was executed if such evidence is probative of a lack of capacity at the time the will was executed.

Undue Influence.  To establish undue influence, the contestant must prove:  (1) Existence and exertion of an influence.  The contestant must prove that a dominant influence existed and was exerted upon the testator; (2) Overpowers mind and will of testator.  One contending that the testator was unduly influenced must further prove that the effect of the influence was to overpower the mind and free will of testator; and (3) Will would not have been executed “but for” that influence.  The will contestant must prove that the product of the influence is a will that would not have been executed “but for” the influence.  “[T]he influence is no undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence . . . [O]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless [these] are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.”  Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).

“[A] will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise influence.”  Rothermel, 369 S.W.2d at 917.  Thus, regardless of the type of relationship that existed between the testator and the beneficiary, the elements of undue influence must be met.  Evans v. May, 923 S.W.2d 712 (Tex. Civ. App. 1996).

Further, mere susceptibility to influence due to old age or physical condition is insufficient to prove undue influence.  This evidence may be considered as establishing a physical incapacity to resist or the susceptibility of the testator’s mind to an influence exerted.  However, this evidence does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed.

Finally, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough to establish undue influence.  “[A] will may not be set aside because some interested party, or jury, disagrees with the disposition.”  In re Estate of Davis, 920 S.W.2d 463 (Tex. App. 1996) (reversing jury verdict).  It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or of undue influence.

Testator Did Not Know Contents of Will.  Texas recognizes this unusual and rarely encountered ground for denial of probate if suspicious circumstances are present.  A competent testator is presumed to know the contents of a testamentary instrument he has signed, unless a set of circumstances exists that casts suspicion on the issue.  Gilkey v. Allen, 617 S.W.2d 308 (Tex. Civ. App. 1981).  This presumption arises even if the testator was blind or illiterate.


June 9, 2017

Welcome to our new website!


June 26, 2017


Contesting a Will

MCJ

June 9, 2017


Welcome to our new website!

Author's Name

This blog is made available by McWhorter, Cobb & Johnson, LLP, and its attorneys solely for educational and informational purposes. This blog is not intended to and does not provide legal advice. By using this blog, you agree that no attorney client relationship has been created. This blog is not a substitute for competent legal advice from a licensed attorney.


June 26, 2017

Contesting a Will

In Texas (as in many states), if a beneficiary contests the will and loses, and if the will contains a no-contest clause and it is given effect, the beneficiary forfeits her legacy.  There is a very narrow exception that would allow the beneficiary to receive the designated benefits under the will which requires the court to find that, even though the beneficiary loses the will contest, she brought the action in good faith and had just cause to contest the will.  Tex. Prop. Code § 254.005; see Hammer v. Powers, 819 S.W.2d 669 (Tex. App.—Fort Worth 1991, no writ) (held in favor of will based on the affidavits and testimony provided).

Testamentary Capacity.  As is true in most states, a will can be contested at the time the will is offered for probate, or within two years after the will has been formally admitted to probate (i.e., after due execution has been proved).  In fact, most will contests are filed within that two-year period after the will has been probated.  Once the will has been admitted to probate, the burden as to testamentary capacity shifts to the contestant.

At the time of executing the will, the testator must have had sufficient capacity to: understand the nature of the act he was doing; know the nature and character of his property; know the objects of his bounty; and understand the dispositions he was making.

Capacity to make a will may exist even where capacity to make a contract does not.  The fact that a testator was committed to a mental hospital shortly before and shortly after executing a will, while of strong probative force, is not conclusive evidence of lack of capacity; a juror may still find the testator met the four-point test above.  Likewise, evidence that the testator was old, feeble, and in poor health is, by itself, insufficient to establish a lack of testamentary capacity.  Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980).

Evidence of lack of testamentary capacity at times other than the time of execution can be used to establish incapacity on the date the will was executed if such evidence is probative of a lack of capacity at the time the will was executed.

Undue Influence.  To establish undue influence, the contestant must prove:  (1) Existence and exertion of an influence.  The contestant must prove that a dominant influence existed and was exerted upon the testator; (2) Overpowers mind and will of testator.  One contending that the testator was unduly influenced must further prove that the effect of the influence was to overpower the mind and free will of testator; and (3) Will would not have been executed “but for” that influence.  The will contestant must prove that the product of the influence is a will that would not have been executed “but for” the influence.  “[T]he influence is no undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence . . . [O]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless [these] are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.”  Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).

“[A] will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise influence.”  Rothermel, 369 S.W.2d at 917.  Thus, regardless of the type of relationship that existed between the testator and the beneficiary, the elements of undue influence must be met.  Evans v. May, 923 S.W.2d 712 (Tex. Civ. App. 1996).

Further, mere susceptibility to influence due to old age or physical condition is insufficient to prove undue influence.  This evidence may be considered as establishing a physical incapacity to resist or the susceptibility of the testator’s mind to an influence exerted.  However, this evidence does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed.

Finally, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough to establish undue influence.  “[A] will may not be set aside because some interested party, or jury, disagrees with the disposition.”  In re Estate of Davis, 920 S.W.2d 463 (Tex. App. 1996) (reversing jury verdict).  It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or of undue influence.

Testator Did Not Know Contents of Will.  Texas recognizes this unusual and rarely encountered ground for denial of probate if suspicious circumstances are present.  A competent testator is presumed to know the contents of a testamentary instrument he has signed, unless a set of circumstances exists that casts suspicion on the issue.  Gilkey v. Allen, 617 S.W.2d 308 (Tex. Civ. App. 1981).  This presumption arises even if the testator was blind or illiterate.


June 9, 2017

Welcome to our new website!

June 26, 2017


Contesting a Will

MCJ

June 9, 2017


Welcome to our new website!

Author's Name

This blog is made available by McWhorter, Cobb & Johnson, LLP, and its attorneys solely for educational and informational purposes. This blog is not intended to and does not provide legal advice. By using this blog, you agree that no attorney client relationship has been created. This blog is not a substitute for competent legal advice from a licensed attorney.