The Doctrine of Undue Influence in Texas Probate Cases

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Jason B. Freeman

Jason B. Freeman

Managing Member


Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine, a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

Texas courts have long recognized that the free will of a testator (i.e., the one who executes a will) may be overcome by the improper actions or threats of others.  See, e.g., Long v. Long, 125 S.W.2d 1034, 1035 (1939).   Where this occurs, courts are permitted to set aside a last will and testament under the doctrine of undue influence.  However, as discussed below, proving undue influence can oftentimes be a challenging endeavor.

Specifically, the party contesting a will generally bears the burden of proof to show undue influence by a preponderance of the evidence (i.e., more than 50% likelihood).  Woods’ Estate, 542 S.W.2d 845, 846 (Tex. 1976).  Given the inherently secret nature of undue influence, it is not surprising that few undue influence cases have direct evidence of improper conduct or actions.  Rather, many contestants raising undue influence must rely more heavily on circumstantial evidence to prove their case.

As a threshold matter, the contestant should also understand that he or she must introduce sufficient evidence to show more than a “mere request” by the beneficiary to the testator to take part in the estate.  See, e.g. Matter of Kam, 484 S.W.3d 642, 652 (Tex. App.—El Paso 2016, pet. denied).  In addition, Texas courts have repeatedly held that the contestant must show more than an opportunity by the beneficiary to exert influence over the testator (e.g., if the beneficiary was the final caregiver for the testator).  Rothermel, 369 S.W.2d 917, 923 (Tex. 1963); In re Estate of Ross, No. 10-10-00189-CV, 2011 WL 6004336, at *6 (Tex. App.—Waco Nov. 30, 2011, no pet.) (mem. Op.).

Rather, to show undue influence, the contestant must be able to show:  (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.  Rothermel, 369 S.W.2d at 923.

The Texas Supreme Court has provided a non-exhaustive list of factors courts should consider in weighing whether there is proof of undue influence.  Id.  These factors are listed below.  The first five factors “address the first element of undue influence (i.e., whether such influence existed and was exerted with respect to the testament at issue); the next four factors concern the second element (i.e., whether the testator’s will was subverted or overpowered by such influence); and the tenth factor is relevant to the third element (i.e., whether the testament would have been executed but for such influence).”  Kam, 484 S.W.3d at 652-53; In re Estate of Clifton, 2012 WL 3139864, at *3.  Thus, these factors look to:

  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 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 had been a 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. 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.

Rothermel, 369 S.W.2d at 923.  Predictably, “[n]o two suits alleging [undue] influence are the same.”  See id. at 921.  Thus, the outcome of each case will depend largely on its own unique facts.  Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577, at *14 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.).

The contestant may succeed on an undue influence claim based on circumstantial evidence alone.  But, “the circumstances must be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised but that it controlled the will power of the testator at the precise time the will was executed.”  Green v. Earnest, 840 S.W.2d 119, 120 (Tex. App.—El Paso Oct. 7, 1992) (citing Kirkpatrick v. Raggio, 319 S.W.2d 362, 366 (Tex. Civ. App.—Fort Worth, writ ref’d n.r.e.).  Conversely, if the contestant can only show circumstances that are both consistent with a will executed free from improper influence and also a will resulting from undue influence, the contestant will lose on his or her burden of proof.  Rothermel, 369 S.W. at 922.

Because the burden of proof rests on the contestant in an undue influence case, it is standard practice for the will proponent to file a motion for summary judgment on the undue influence claim.  In legal parlance, this means that the will proponent will contend that a trial is not necessary because the contestant has not offered sufficient proof of one or more of the elements he or she must prove above.  Accordingly, it is often critical for the contestant to utilize a full and robust discovery strategy early in the proceedings to uncover facts and build a sufficient case to withstand a summary judgment motion.


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