In the Estate of Hogan, a June 9, 2022 opinion from the Texas Eleventh Court of Appeals, the court reviewed the basics of undue influence and testamentary capacity will contests. This case serves as a helpful primer on the elements and burdens of proof and production in a Texas will contest on the grounds of testamentary capacity and undue influence.
The Facts of Estate of Hogan
James Hogan executed a self-proved will in 2010. In the 2010 will, Decedent revoked his prior will and devised his property to only one of his sons, Harold, thus disinheriting his other son, Gary. Decedent’s prior will left everything to both of his sons equally. Decedent had a granddaughter from a predeceased son, and a daughter from a prior marriage, that he also disinherited under the revoked prior will and the 2010 will.
Decedent died in 2015. Harold applied to probate the 2010 will. Gary objected and alleged that Decedent lacked testamentary capacity and that the Texas will was the result of Harold’s undue influence over Decedent. A trial was held.
The Texas trial court found that the 2010 will was executed with the proper testamentary formalities under Texas law, and that the Decedent had the requisite testamentary capacity to execute the 2010 will. The trial court found no evidence was presented to support a finding of undue influence, and admitted the 2010 will to evidence.
Gregory appealed the legal and factual sufficiency of the Texas trial court’s findings that decedent had testamentary capacity and executed the will free from undue influence.
What Is the Burden of Persuasion And Of Production In a Testamentary Capacity Texas Will Contest?
The Texas appellate court summarized the burdens of persuasion and of production in a will contest on the grounds of testamentary capacity:
Before a will is admitted to probate, the will’s proponent bears the burden of establishing that the testator had testamentary capacity at the time of its execution. Croucher, 660 S.W.2d at 57; Neal v. Neal, No. 01-19-00427-CV, 2021 WL 1031975, at *4 (Tex. App.—Houston [1st Dist.] Mar. 18, 2021, no pet.) (mem. op.); Estate of Danford, 550 S.W.3d 275, 281 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Hemsley, 460 S.W.3d at 634. The proponent of the will may make a prima facie case that the testator had testamentary capacity by introducing a self-proved will into evidence. Neal, 2021 WL 1031975, at *4; see also TEX. EST. CODE ANN. § 251.101(1) (West 2020) (defining self-proved wills). The burden of production then shifts to the contestant to put forward evidence that negates testamentary capacity. Neal, 2021 WL 1031975, at *4; Danford, 550 S.W.3d at 281. The burden of persuasion, however, always remains with the will’s proponent. Neal, 2021 WL 1031975, at *4; Danford, 550 S.W.3d at 281. In short, a self-proved will does not relieve the proponent of their burden of proving that the testator had testamentary capacity when the will was executed. Croucher, 660 S.W.2d at 57; In re Estate of Graham, 69 S.W.3d 598, 605–06 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.).
When Does a Testator Have Testamentary Capacity Under Texas Law?
As the testamentary capacity, the Texas appellate court summarized:
A testator has testamentary capacity when he is able to understand that he is making a will, the effect of making the will, and the general nature and extent of his property. Estate of Luce, No. 02-17-00097-CV, 2018 WL 5993577, at *8 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.); Hemsley, 460 S.W.3d at 634. The testator must also know his family, the natural objects of his bounty and the claims upon them. He must possess sufficient memory to collect in his mind the elements of the business transacted and hold them long enough to perceive their obvious relation to one another and to form a reasonable judgment about them. Luce, 2018 WL 5993577, at *8; Hemsley, 460 S.W.3d at 634.
The key question is whether the testator had testamentary capacity at the time that he actually executed the will. See Neal, 2021 WL 1031975, at *4; Danford, 550 S.W.3d at 281; Luce; 2018 WL 5993577, at *8; Hemsley, 460 S.W.3d at 634. But evidence about the testator’s state of mind at other times can be used to prove his state of mind when he executed the will if it demonstrates a persistent condition affecting his competency that was probably present at the time he executed the will. Croucher, 660 S.W.2d at 57; Hemsley, 460 S.W.3d at 634; In re Estate of Pilkilton, No. 05-11-00246-CV, 2013 WL 485773, at *4 (Tex. App.—Dallas Feb. 6, 2013, no pet.) (mem. op.). This may be inferred from the testimony of lay and expert witnesses concerning their observations of the testator’s conduct prior or subsequent to the execution of the will. Neal, 2021 WL 1031975, at *4; Danford, 550 S.W.3d at 281.
Legal Sufficiency of a Self-Proved Will
The Texas appellate reviewed the legal sufficiency and factual sufficiency of the self-proved will as to testamentary capacity, stating:
A self-proved will, alone, is not sufficient as a matter of law to establish testamentary capacity once some evidence has been produced to contradict or negate the existence of testamentary capacity. The court must look further than the bare fact of self-proof, by itself, to find a legally sufficient quantum of evidence that Decedent had testamentary capacity when he executed the will. Here, the self-proved will was prepared and witnessed by legal professionals. Appellant’s own testimony that he did not believe Decedent’s attorney would have permitted Decedent to execute the 2010 will in an incapacitated state, amount to more than a scintilla of evidence. Therefore, the evidence was legally sufficient to demonstrate that Decedent actually had testamentary capacity when he executed the 2010 will.
As to the factual sufficiency of whether decedent had testamentary capacity when he executed the will, the court reviewed the evidence and stated that “we cannot say that the evidence supporting the finding of testamentary capacity was weak or that the trial court’s finding of testamentary capacity was contrary to the overwhelming weight of the evidence, let alone so contrary as to be clearly wrong and manifestly unjust.”
What Is the Burden Of Persuasion And Of Production In an Undue Influence Texas Will Contest?
The Texas appellate court reviewed the shifting burdens of persuasion and production in a Texas undue influence will contest:
The party contesting a will generally bears the burden of proving undue influence. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963); Neal, 2021 WL 1031975, at *8; Danford, 550 S.W.3d at 281; Pilkilton, 2013 WL 485773, at *11. But if the contestant introduces evidence of a confidential or fiduciary relationship between the testator and the proponent, a presumption of undue influence arises and the proponent must produce evidence showing an absence of undue influence. Neal, 2021 WL 1031975, at *9; Danford, 550 S.W.3d at 281. This is a rebuttable presumption that only shifts the burden of production; the burden of persuasion remains with the party contesting the will. Neal, 2021 WL 1031975, at *9; In re Estate of Grogan, 595 S.W.3d 807, 818 (Tex. App.—Texarkana 2020, no pet.). If the proponent introduces evidence contradicting the presumption, “the presumption is extinguished, and the case proceeds as if no presumption ever existed.” Neal, 2021 WL 1031975, at *10.
What Are the Elements Of Undue Influence In a Texas Will Contest?
The Court reviewed the requirements to prove undue influence in a Texas will contest:
Absent a presumption of undue influence—or in the event that the proponent of the will rebuts such a presumption—the contestant must prove: (1) the existence and exertion of an influence (2) that subverted or overpowered the testator’s mind when he executed the will, (3) such that he executed a will that he would not have otherwise executed but for the influence. Rothermel, 369 S.W.2d at 922; Pilkilton, 2013 WL 485773, at *11. Not every influence amounts to undue influence. Rothermel, 369 S.W.2d at 922. Indeed, “one may request or even importune and entreat another to execute a favorable dispositive instrument; but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker,” there is no undue influence. Id. The presence of undue influence “is usually a subtle thing and by its very nature usually involves an extended course of dealings and circumstances[,]” and it may be proved by circumstantial evidence. Id. The circumstances relied on as establishing undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of such influence. In re Kam, 484 S.W.3d 642, 652 (Tex. App.—El Paso 2016, pet. denied).
Ten Factors To Determine Whether Undue Influence Exists In Texas Will Contest
Ten non-exhaustive factors are considered when determining whether undue influence exists in a Texas will contest:
The first five factors concern whether the proponent exerted any influence over the testator, considering:
(1) the nature and type of relationship between the testator, contestant, and proponent;
(2) the opportunities existing for the exertion of the type of influence or deception possessed or employed;
(3) the circumstances surrounding the drafting and execution of the will;
(4) the existence of a fraudulent motive;
(5) whether there has been habitual subjection of the testator to the control of another.
The next four factors are used to determine whether the testator’s will was subverted or overpowered by any influence exerted by the proponent, considering:
(6) the state of the testator’s mind at the time he executed the will;
(7) the testator’s mental or physical incapacity to resist such influence or the susceptibility of the testator’s mind to the type and extent of influence exerted;
(8) the words and acts of the testator;
(9) the testator’s weakness of mind and body, whether a result of age, disease, or otherwise.
Finally, the tenth factor is relevant to determining whether the will would have been executed in the absence of the influence exerted by the proponent, considering:
(10) whether the will executed is unnatural in its disposition of the testator’s property.
Here, appellee satisfied his burden of producing evidence rebutting (and thereby extinguishing) any presumption of undue influence. Therefore Appellant had the burden of proof at trial to show undue influence occurred. After examining the evidence, the court determined that “the great weight and preponderance of the evidence does not support a finding that Appellee exerted an influence over Decedent. Nor does the great weight and preponderance of the evidence support a finding that the 2010 will made an unnatural disposition of Decedent’s property. We cannot say then, that the trial court’s finding that Decedent did not execute his will under undue influence is against the great weight and preponderance of the evidence.”
The Texas appellate court affirmed the order of the trial court, and provided Texas probate lawyers and litigants with a primer on undue influence and testamentary capacity will contests.