The Court of Appeals of Texas, Eighth District, El Paso, in In re Estate of Scott, affirmed a jury’s finding that three wills were signed as the result of undue influence, and that appellants did not act in good faith in defending the wills, and were thus not entitled to attorney’s fees.
The Facts of In Re Estate of Scott
In Re Estate of Scott was a triple will contest regarding purported wills of Buford Scott, Jr.
In 2008 a management trust was created after a Texas court found that Buford was without capacity as provided by the Texas Probate Code to manage his property. Buford challenged the establishment of the trust. As part of Buford’s litigation, a psychiatric evaluation was performed. The doctor concluded that Buford was of below average IQ and:
In addition, she concluded that Buford was “extremely susceptible to the manipulation and control by others” due in part to his below average intelligence and paranoid tendencies… In her report, Dr. Clayton advised the court that she believed Buford was “partially incapacitated” and needed a partial guardianship with regard to managing his financial and business affairs.
A settlement agreement was reached in 2011 and the management trust continued with modifications.
In 2012, Buford hired Geoffrey Tait and Irene Rueda. Initially, Tait and Rueda were hired as private investigators. Over time, Tait and Rueda began providing Buford with daily services and support.
Between 2013 and 2015, Buford executed several wills, and at least three purported wills were presented to the Texas probate Court.
The March 23, 2013 Holographic Will
In 2013, Tait contacted an attorney to prepare a will or trust for Buford to sign. The attorney explained how to prepare and execute a holographic will. On March 23, 2013, Buford signed a three-page will all in his own handwriting. The original of the March 23, 2013 will was never found.
In November 2014, Tait successfully had Buford restored to legal capacity based on reports of three mental status evaluations. The attorney who assisted Tait, Pam Walker, suggested that Buford execute a formal will. Tait explained that he had already prepared a will for Buford from the internet, and declined Walker’s assistance.
The July 10, 2015 “Annie Green Will”
In July 2015, Tait drafted a will for Buford to sign, using a will template. On July 10, 2015, Tait videotaped Buford at his home signing the will. Tait took the will to a notary, Annie Greene, who refused to notarize the will. The will was not introduced at trial, but Tait testified that the bequests were substantially the same as the next two wills, signed in July and August 2015.
The July 21, 2015 Will
Buford was admitted to the hospital on July 19, 2015 and diagnosed with terminal esophageal cancer. On his second day in the hospital, Buford signed another will drafted by Tait. Tait videotaped the signing:
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?” Buford agreed, and Tait next confirmed that Buford was not leaving anything to his cousins. Buford then explained that he believed his cousins had attended two hearings when the court was considering whether to place his assets in the management trust, and he faulted them for not opposing the trust and for allowing the judge to take his property away from him.
The August 13, 2015 Will
Tait, concerned that the July will might not be valid, consulted with another attorney, Paul Wieneski. Attorney Wieneski advised that although the will was valid it was preferable to include a self-proving affidavit and more specificity regarding the creation of the charitable trust. Tait revised the will, included the suggested revisions, and arranged for another formal will signing on August 13, 2015.
The August 13, 2015 will:
- Provided for the funding of a charitable trust with assets worth around $32,000;
- Gave Tait and Rueda all of Buford’s real property and personal property;
- Gave $350,000 to Tait;
- Gave $200,000 to Rueda; and,
- Named Tait and Rueda’s family members as alternate beneficiaries.
The bequests to Tait and Rueda were valued at about $2.4 million. The August 2015 Will contained a paragraph expressly disinheriting Buford’s cousins. Buford died several days after executing the will.
The Cousins File A Will Contest Alleging Undue Influence
Tait submitted the August 2015 Will to probate. Buford’s cousins filed a petition to contest the will on the grounds of lack of testamentary capacity and undue influence in the Texas probate court. They sought a declaration that the will was invalid and that Buford had died intestate.
The matter was tried to a jury that found:
- Buford lacked testamentary capacity to sign the August 13, 2015 will, and signed it as the result of undue influence.
- Buford lacked testamentary capacity to sign the July 21, 2015 will, and signed it as the result of undue influence.
- Buford had testamentary capacity to sign the March 23, 2013 Holographic Will, but signed it as the result of undue influence. The jury otherwise found that the Holographic Will was wholly in Buford’s handwriting, and was intended to dispose of his property.
- Buford subsequently revoked the March 23, 2013 Holographic Will.
- Tait and Rueda did not act in good faith or with just cause in submitting the wills to probate or defending the wills during the will contest proceedings.
The Texas trial court’s final judgment declared all three wills invalid on the grounds of undue influence and denied probate as to each will.
What Proof Is Required In A Texas Undue Influence Will Contest?
The requirements for a successful Texas will contest on the grounds of undue influence are:
To prove undue influence, the contestant must convince the fact finder of: (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. Id. The burden is upon the contestant to prove each of these allegations by a preponderance of the evidence. Woods’ Estate, 542 S.W.2d 845, 846 (Tex. 1976); see also Matter of Kam, 484 S.W.3d 642, 651-53 (Tex.App.–El Paso 2016, pet. denied) (recognizing that once evidence established that will was signed in compliance with all statutory requirements, the burden shifted to will contestant to establish that the will should be voided as the product of undue influence).
To determine the existence and exertion of an influence, Texas courts look to the following factors:
- The nature and type of relationship existing between the testator, the contestants, and the party accused of exerting such influence;
- The opportunities existing for the exertion of the type or deception possessed or employed;
- The circumstances surrounding the drafting and execution of the testament;
- The existence of a fraudulent motive
- Whether there had been a habitual subjection of the testator to the control of another
Undue Influence In The Contest of The March 2013 Holographic Will
With respect to the March 2013 will, the court stated:
First, the undisputed evidence demonstrated that when Buford first met Tait and Rueda, he did not have a will, and had not expressed any intent to draft a will; to the contrary, in his 2010 meeting with Dr. Clayton, Buford told her that his family did not write wills and that they had all died intestate. Tait himself admitted that when he initially suggested to Buford that he should draft a will, Buford was resistant to the idea, and that he spent several months trying to convince Buford of the need to do so.
By the time Buford signed the holographic will, Tait had:
- taken over all of Buford’s affairs
- was corresponding directly with attorneys and experts
- accompanied Buford to virtually every meeting
Tait and Rueda argued that there was not sufficient evidence to support a finding that their influence was effectively asserted, because the jury impliedly rejected the notion that Buford had any mental weakness because they found he had capacity to sign the 2013 will. Yet testamentary capacity and undue influence are separate and distinct questions. Rothermel, 369 S.W.2d at 922 (noting that undue influence in the procurement of a will is a ground for contesting a will “separate and distinct from the ground of testamentary incapacity”). Accordingly, the jury’s finding that Buford had testamentary capacity does not foreclose a finding that he was controlled by Appellants’ actions, or that the will contest based on undue influence could not be successful under Texas law.
The court cited to Dr. Clayton’s opinion that Buford was “very susceptible to being taken advantage of by people he thought were his friends and yet were only using him for his money.” The court also relied on testimony from the attorney that Tait contacted regarding the holographic will, as well as the cousins, who all believed that Buford was not capable of writing the holographic will on his own.
In addition, Tait all but admitted that he was in control of dictating the terms of the Holographic will in an email that stated:
“If I’d known [the Holographic Will] should include most the [sic] same language of a more formal Texas will as you now [*31] indicate, I’d have had him write it differently,” and that he intended to have Buford “add additional provisions to his Will as you suggest.”
The Validity of the July and August Wills
The Texas appeals court upheld the finding of invalidity in the will contest based on undue influence for the July and August 2015 wills. These wills were executed in the hospital and a nursing home, respectively.
The evidence supporting the finding of opportunity to exert influence over Buford included:
- Within days after the management trust was lifted, Buford signed a Limited Power of Attorney giving Tait control over virtually all of Buford’s financial, legal, and medical decisions;
- Tait took it upon himself to draft the various formal wills that Buford signed in July and August of 2015 during his final illness, declining help from attorneys;
- Tait and Rueda had motive for influencing Buford to sign the July and August Wills, as they received bequests exceeding two million dollars in both the July and August Wills.
Regarding the evidence that they effectively asserted influence, the court concluded that the jury was entitled to rely on Dr. Clayton’s testimony concerning Buford’s weakened physical condition during the general time period in which he signed the July and August Wills, as evidence of his enhanced susceptibility to Appellants’ influence over him.
This case is an excellent example of a factual situation ticking nearly every box for an undue influence will contest in Texas. Buford, Jr. was of weakened intellect, and Tait and Rueda were involved in every aspect of the creation and execution of the purported wills. The evidence presented was competent and substantial, and amount to more than the mere suspicion of undue influence.
Tait and Rueda also requested and were denied attorney’s fees for submitting the August will to probate and for defending against the will contest. Texas Estates Code 352.052 allows for the payment of a designated executor’s or beneficiary’s legal expenses when that person defends or prosecutes a will in good faith and with just cause, whether or not successful. We have previously written about fees for defending a will against a contest here.