Probate, trust, guardianship and inheritance litigation
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Suspicion of Undue Influence Not Enough In Texas Will Contest

Bare suspicion of undue influence is not enough to survive summary judgment in a Texas will contest.  A romantic relationship does not automatically create a confidential or fiduciary relationship.  Bare testimony that a decedent made a new will is insufficient to raise a fact issue of revocation.  These are the lessons from the January 23, 2020 opinion in Estate of Grogan from the Texas Court of Appeals, Sixth District.

The Facts of This Texas Will Contest

Henry Ezekiel “Zeke” Grogan died at age 83 in 2018.  Zeke had no lineal descendants and no spouse.  Zeke did have a lifetime companion, Linda Carpenter.  Zeke and Linda lived together for decades after working together in a dental practice.

Zeke’s 2010 lawyer-drafted will was admitted to probate.  The 2010 will basically left everything to Linda, and nothing to Zeke’s brothers, William and George.  William and George each separately contested the 2010 Will.  Summary judgment was granted in Linda’s favor.

William appealed the grant of summary judgment in Linda’s favor finding that there was no evidence that the 2010 will was the result of undue influence exerted by Linda, no evidence of a will executed by Zeke after the 2010 will, and that the 2010 will was executed without undue influence and was not subsequently revoked.

The Summary Judgment Evidence

William put forward the following evidence:

  • Zeke’s relationship with his brothers was strained and included a fight in the dentistry office that broke up their professional and personal relationships in 1979. George never spoke to William again.
  • George had no connection with Zeke for a long time.
  • William did not have close contact with either brother.
  • Zeke told William to stay out of the business.
  • William didn’t know where Zeke lived.
  • William met Linda only once.
  • William didn’t know anything about Zeke and Linda’s relationship.
  • William knew nothing of the 2010 will’s execution.
  • William didn’t remember if he knew about any will before Zeke’s death.

Notably, William’s evidence revealed no personal knowledge about Linda and Zeke, and no personal knowledge of the circumstances surrounding the preparation of the 2010 will.  Instead, William established that William had a strained relationship with Zeke and that his Texas will contest was based on nothing but unsupported suspicion of undue influence.

In contrast, Linda presented the following evidence:

  • Linda and Zeke had close relationship for 30 years.
  • Linda and Zeke lived together, were lifetime companions, and Zeke loved her children.
  • In 1995, without Linda’s knowledge, Zeke executed a holographic will leaving William and George $1.00 and everything else to Linda. Linda’s son Ryan was the sole contingent beneficiary if Linda predeceased Zeke.
  • Zeke told Linda that he was going to have a lawyer draw up a will in 2010.
  • Zeke asked Linda to copy notes that he had written for the attorney, so it would be in better handwriting, and Linda did so.  The notes said that Linda would be sole beneficiary, Ryan would be the contingent beneficiary, and that Zeke wanted to disinherit  his brothers and other relatives.
  • Zeke was in good health in 2010.

The drafting attorney, Branch, presented an affidavit which attested that:

  • Branch met with Zeke alone.
  • Zeke brought a copy of the 1995 will.
  • Zeke said he wanted to leave everything to Linda, make Ryan the contingent beneficiary, and disinherit his brothers. Branch’s Memo to File said the same thing.
  • Branch found Zeke to be decisive and strong willed. He knew exactly what he wanted.
  • Branch prepared the 2010 will and other estate planning documents.
  • Zeke returned to office alone to sign documents.
  • Linda was not present.
  • Zeke had a sound mind, testamentary capacity, understood who his heirs at law were and who he wanted to be his beneficiaries.

A neighbor also testified that:

  • Zeke told him that Linda was pressuring him to make the will.
  • Zeke called Linda a witch.
  • Zeke did a new will in 2016 that gave Perry several plots of land, and gave Linda the house and five acres. Perry never saw the 2016 will, but claimed the will was in the office Linda cleaned the day after Zeke died.
  • Zeke said that Linda had found some paperwork regarding the will and that it had been changed in 2016.

Undue Influence In Texas Will Contests

To show undue influence in a Texas will contest, a will contestant must prove:

  1. The existence and exertion of an influence;
  2. That subverted or overpowered the mind of the testator at the time of execution of the instrument;
  3. So that the testator executed an instrument he or she would not otherwise have executed but for such influence.

Mere suspicion of undue influence is not enough in a Texas will contest.

Does a Romantic Relationship Equal a Fiduciary Relationship in Texas?

No, evidence of a romantic relationship does not constitute evidence of a fiduciary relationship under Texas law.  A confidential relationship is determined from the actualities of the relationship between the persons involved.  Fiduciary relationships in Texas can be formal or informal.  A formal confidential relationship is one that arises as a matter of law, such as between an attorney and a client.  An informal or confidential fiduciary relationship arises from a moral, social, domestic, or merely personal relationship where one persons trusts in and relies on another.

William argued that Linda unduly influenced Zeke because she was in a confidential or fiduciary relationship with him.

William says he met his burden of showing a fiduciary or confidential relationship by showing that Linda and Zeke were romantically involved.  The court considered that Zeke relied on Linda , trusted Linda, and loved Linda, but also that Zeke was in good mental health until his death. The Court stated:

Sister courts have found that “a will contestant may raise a presumption of undue influence by introducing evidence of a fiduciary relationship between the testator and the will proponent.  This court hasn’t applied this presumption in a will contest, but has held that the fiduciary has a burden to demonstrate the fairness of a transaction.  Once evidence contradicting the presumption has been offered, the presumption is extinguished, and the case proceeds has if no presumption ever existed.

Therefore, even if William had raised the presumption, the undisputed evidence showing that Zeke was strong-willed and of sound mind extinguished it.

Mere Suspicion of Undue Influence In Texas Is Not Enough To Survive Summary Judgment

In analyzing the existence of undue influence, the court should consider:

the relationship existing between the testator and the parties, the opportunities for an exertion or deception, the words or acts of the parties, the mental or physical incapacity to resist or susceptibility to influence, the circumstances surrounding the drafting and execution of the will, the existence of a fraudulent motive, and any domination or habitual control of the testator by another.

Here, Linda had some influence over Zeke, but there was no evidence suggesting that the 2010 will contained a disposition that was against Zeke’s wishes when he executed it.  None of the witnesses had evidence or personal knowledge regarding the specific circumstances surrounding the execution of Zeke’s will.  The mere suspicion of undue influence in William’s Texas will challenge was not enough to overcome the lack of personal knowledge.

Branch’s testimony was undisputed that Zeke knew what he was doing.  In addition, Zeke had made a 1995 will with basically the same distribution pattern.  The court summarized by stating:

At best, William’s arguments and evidence produce merely a conjured suspicion of undue influence.  A “will ‘executed under the formalities required by law by one mentally capable of executing it should not be set aside on a bare suspicion of wrongdoing.

Therefore, just because you have a suspicion of undue influence occurring does not, if you have no personal knowledge and no evidence to support your claim, create an issue of fact for summary judgment.  There must be a scintilla of evidence to overcome summary judgment in a Texas will contest.

Bare Testimony That Decedent Made A New Will Does Not Raise A Fact Issue of Revocation

Because the 2010 will was not destroyed, William had to show it was revoked by a subsequent testamentary document executed with like formalities.  Although the  revoking document need not be produced, there must be evidence that execution meeting such requirements occurred, such as testimony of disinterested witnesses testifying that a new will was executed.

Here there was no such evidence.

However, bare testimony that a decedent made a new will is insufficient to raise a fact issue of revocation where there was no evidence that anyone saw or witnessed the new will.  This is because such evidence that the decedent may have executed a new will is mere suspicion requiring the fact-finder “to stack inference on inference” and amounts to no evidence that a later will was executed with the formalities required by the Texas Estates Code.

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