Undue Influence in Texas Will Contests

by Russell Aldrich | January 31, 2023

A contestant may challenge the validity of a will on the basis that the testator – that is, the person making the will – would not have executed the will were it not for the exercise of undue influence of one or more third persons. If the contestant can prove the elements of undue influence, they will prevail on their will contest and the court will enter an order overturning the contested will.

What is undue influence?

In layman’s terms, when someone speaks of an elderly, weakened, or incapacitated person who was “taken advantage of” by someone else, more often than not they’re talking about undue influence.

Undue influence has relevance in a number of legal contexts, including power of attorney, trust, and probate litigation. Essentially, when someone executes a document, makes a gift, or transfers funds due to the pervasive influence of a family member, household employee, financial advisor, friend, neighbor, or other person, a claim for undue influence may arise.

Undue influence is frequently alleged over the course of will contest proceedings; namely, that the testator would not have executed a will but for the undue influence of a third person. The challenge will usually – but not always – contains gifts to the person or persons accused of exercising undue influence over the testator.

Texas courts, in the context of will contests, define undue influence as (1) the existence and exertion of an influence; (2) the effective operation of such influence to subvert or overpower the mind of the testator at the time of the will’s execution; and (3) the execution of a will that the maker would not have exercised but for such undue influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).

A will contestant alleging a claim of undue influence must prove each of the above three elements to succeed in having the contested will overturned.

What are the signs of undue influence in the context of a will contest?

As noted, undue influence refers to the use of coercion or manipulation by one person to persuade another person to act against their own free will. Signs of undue influence in the context of a will contest may include:

• The testator was under the control or domination of the person exerting the influence
• The person exercising an undue influence isolated the testator by denying close family and friends the right to speak to the testator in person or over the phone
• The testator was in a vulnerable state, such as being elderly or ill
• The testator’s will was made under suspicious circumstances, such as being executed shortly before the testator’s death or at a time when the testator was heavily medicated
• The will gives an inordinate amount of assets to the person exerting undue influence
• The will disinherits family members or close friends who would normally be expected to be beneficiaries in favor of someone else (i.e., the testator makes an “unnatural disposition”)
• The testator expressed reluctance or uncertainty regarding the will
• The terms of the will are inconsistent with the testator’s wishes and intentions, such as when the gifts of property contained in the contested will are markedly different from those expressed by the testator in previous wills
• The testator was not given the opportunity to consult with an attorney or independent advisors, including instances when the will was drafted by the attorney of the person exercising the undue influence

How do I prove undue influence in court?

Even if there are multiple signs of undue influence, winning in court is not as simple as marching into the courtroom and telling the judge what happened. Not all evidence is admissible in a court of law, and even otherwise admissible evidence may be disallowed by the court if one does not carefully abide by the applicable rules.

A probate litigation attorney will help you gather relevant evidence and ensure that all applicable Texas Rules of Evidence and Texas Rules of Civil Procedure are followed so that they can be used in the will contest proceedings.

Unfortunately, in undue influence cases, there’s rarely a “smoking gun” where a single piece of evidence is so strong that it alone is sufficient to prove the case. Instead, multiple pieces of evidence, including circumstantial evidence, must be relied upon to prove the existence of undue influence. Fortunately, a skilled probate litigator can assist with gathering the evidence necessary to prevail on an undue influence claim through the conduct of written discovery, depositions, bank records requests, and subpoenas.

What kind of evidence is used to prove undue influence in a will contest?

The types of evidence commonly used to prove that a will was executed as a product of undue influence include:

• Witness testimony from people who have seen or have knowledge of the undue influence, as well as individuals familiar with the testator’s family relationships, living situation, and state of mind at or around the time the testator executed the will
• Written communications – such as emails, text messages, letters, or other correspondence – that contain evidence of the undue influence
• Audio or video recordings of the testator, a person exercising undue influence, or others that tend to prove the existence of undue influence
• Medical records evidencing the testator’s physical and mental condition at or around the time the disputed will was executed
• Financial documents, including bank and brokerage statements; copies of checks from the testator’s bank accounts; change of beneficiary forms; bank account signature cards; and payable on death, transfer on death, and other beneficiary designations
• Estate planning documents, to include prior wills, statutory durable powers of attorney, medical powers of attorney, advance directives, declaration of guardianship forms
• Expert witness testimony and analysis regarding the decedent’s medical records, handwriting samples, or financial transactions

It’s worth noting that not all of the above signs are present in every undue influence case, nor is every indicator of undue influence admissible under the Texas Rules of Evidence. A probate litigation attorney will help you evaluate the merits of your case early on so that you can make an informed decision as to whether you should file a will contest.

In Texas, a will contest must be filed within two years of the date from which the contested will was admitted to probate. Furthermore, there are certain procedural advantages that occur if a will contest is filed before the order admitting the will to probate is signed by the judge. As such, if you do suspect that a will may be invalid because of undue influence, it is imperative that you consult with a probate litigation attorney without delay to avoid missing any relevant deadlines.

If you suspect that someone you know is a victim of undue influence, then it’s important that you speak with an attorney with experience litigating will contests and other forms of probate disputes to understand your rights and available options. The attorneys of the Aldrich Law Firm, PLLC have represented clients across the state of Texas in all manner of probate, trust, and fiduciary litigation. Please do not hesitate to contact us today for a consultation.