Probate and Trust Blog

Undue Influence: A Closer Look

A will that was signed as a result of someone exerting “undue influence” over the testator may be found invalid. To establish undue influence, a will contestant must prove (1) the existence and exercise of an influence upon the testator; (2) that operated to subvert or overpower the testator’s mind at the time the will was signed; and (3) that the will signing would not have occurred but for the undue influence.

The Texas Supreme Court has further clarified the concept of undue influence by holding that the ultimate question is whether “the testator’s free agency was destroyed, and whether his will was overcome by excessive importunity, imposition, or fraud, so that the will does not, in fact, express his wishes as to the disposition of his property, but those of the persons exercising the influence.”
Factors that may be considered in an undue influence claim include:

  • The circumstances regarding the execution of the will;
  • The relationship between the testator and beneficiaries;
  • The motive, character, and conduct of those who benefit under the will;
  • The participation, words, and acts of all parties attending the execution of the will;
  • The physical and mental condition of the testator at the time of the execution;
  • The age, weakness, infirmity, and dependency on or subjection to the control of the beneficiary; and
  • The improvidence of the transaction by reason of unjust, unreasonable, or unnatural disposition.

By its secretive nature, the exertion of undue influence will ordinarily be something that is difficult to prove solely with direct evidence. As the Texas Supreme Court has noted, the exertion of undue influence “like all fraudulent and vicious schemes, hides its features behind masks and operates in dark and secret places in covert ways, and proof of it must usually be by circumstantial rather than by direct testimony.”

The opportunity to present circumstantial evidence may mean that a much broader universe of documents, testimony, and other evidence may be admissible in a will contest in comparison to other legal disputes. When the relationship between the testator and beneficiaries is at issue, for example, incidents that occurred months or even years before a will was signed may be offered either to show that the testator had reason to disinherit the contestants from his will, or why the ultimate disposition truly reflected the testator’s will. Similarly, evidence of prior bad acts by the defendant accused of exerting undue influence may be offered as evidence of that individual’s motive or character. However, the admissibility of this evidence in many circumstances will be hotly contested, and an experienced litigator should prepare for a challenge over the limits of what is and is not relevant evidence. Further, even if evidence is relevant, it may still be excluded on the basis that the prejudicial effect of the evidence on the jury is likely to outweigh any benefits it may provide.

Circumstantial evidence may also be subject to a legal concept called the “equal inference rule.” Under this rule, a jury may not infer an ultimate fact from circumstantial evidence that could give rise to two or more inferences, none of which is more probable than another.

Historically, some courts have applied this rule in a strict manner, judging each of the many inferences that may support a claim individually rather than as a whole. As a result, many undue influence claims have been dismissed through summary judgment, rather than proceeding through trial, because the courts concluded that there was no admissible evidence for a jury to consider. However, the Texas Supreme Court has since clarified that the circumstances should be considered “as a whole” and that “even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator. . . the evidence is sufficient to sustain such conclusion.”

Evidence offered by will contestants in an undue influence claim should be carefully prepared so that a clear narrative can be presented to show that undue influence was exerted, even in the absence of any direct evidence. Defense counsel should carefully evaluate and if possible attack each piece of evidence that supports the chain of inferences offered by the contestants, as a ruling that a particular document or testimony is inadmissible could cause the will contestants’ entire circumstantial case to collapse. Additionally, if the evidence taken as a whole supports a narrative in which no undue influence was exerted, defense counsel should be prepared to present a compelling alternative to the contestants’ portrayal of events, such that a court may rule that neither account was more likely than the other and dismiss the claim.

In some instances, a seemingly straightforward case may not be so clear-cut if crucial evidence is not allowed to reach the jury. Whether contesting or defending a will, parties in contested probate proceedings should consider visiting with an experienced trial attorney who has a working familiarity with how evidentiary and procedural rules and prior case law may affect the development of a case.


Recent Probate Appellate Decisions

Bank of America, N.A. v. Dwight Eisenhauer, as Independent Executor of the Estate of Lorene Belcher Walter, Deceased
Texas Supreme Court — October 30, 2015

Background: An employee who was named the beneficiary of a certificate of deposit by virtue of a payable-on-death provision presented her employer’s late husband’s death certificate to the bank and asked it to distribute the funds in the account. The bank did so, and later admitted it had violated the deposit agreement because it had made the payments before the surviving spouse’s death. After her death, the bank did not seek to compel the return of the assets, taking the position that the money was owed to the employee under the deposit agreement anyway. The jury found that although the bank failed to comply with the deposit agreement, the estate had suffered no damages. The trial court, however, granted a judgment notwithstanding the verdict and rendered judgment for the $27,497 that had been distributed to the employee, plus interest, costs and attorneys’ fees.

Decision: Applying a no evidence standard, the Texas Supreme Court found that the jury had correctly found that the estate had suffered no damages. The funds at issue were to pass outside of the decedent’s estate. It noted that if she had attempted, and failed, to withdraw funds during her lifetime there may have been a legal injury, but there was no evidence this ever occurred.

John O’Brien v. Cara Baker, as the Executrix of the Estate of Kenneth Baker
Texas Court of Appeals, Fifth District, at Dallas — November 9, 2015

Background: The founders of an energy consulting firm entered into a shareholders’ agreement which provided that upon the death of either, the surviving founder would purchase the common shares held by the decedent’s estate with proceeds from a life insurance policy purchased by the company for the benefit of the survivor. After one of the founders died, the survivor sought an agreement with the decedent’s spouse that would allow him to cancel the shares of stock in the decedent’s name, reissue them in his name, and place the proceeds from the life insurance policy in the registry of the court during the pendency of a will contest that did not otherwise involve him.

After learning that the decedent’s spouse had been issued letters testamentary, the surviving founder indicated he was prepared to purchase the stock and sent a check. The spouse returned the check and filed a declaratory judgment seeking to establish that she could sell the stock to any transferee under the terms of the shareholder agreement because the survivor had not purchased them within 60 days. The trial court ordered the surviving founder to place $4 million into the registry of the court, prompting the surviving founder to file an interlocutory appeal in the event the order was properly characterized as an injunction and a petition for writ of mandamus if the court’s order was instead in the nature of an attachment or issued under its “inherent authority.”

Decision: The appellate court found the spouse had not established her entitlement to injunctive relief or an attachment, and that the trial court’s order must have been based on its inherent authority. The spouse was required to present evidence that 1) ownership of the insurance proceeds was disputed and 2) that the funds were in danger of being lost or depleted if not placed in the registry of the court. The trial court’s order was held an abuse of discretion because the spouse did not present any evidence entitling her to the relief requested.

Harry Oliver Winkenhower v. George Allen Smith, Independent Executor of the Estate of Lyda Catherine Smith, Deceased
Texas Court of Appeals, Fourth District, at San Antonio — November 10, 2015

Background: In response to a suit to partition ranch property in Bandera County, the appellant alleged in a counterclaim that his mother had stated prior to her death in 2005 that she wished for the ranch to remain in the family in a “blood line trust.” He further alleged that his sister agreed before her death to transfer her one-half interest in the ranch into a trust and forgive a loan she had made to her brother in exchange for appellant conveying his one-half interest in their mother’s residence to his sister and transferring his interest in the ranch into a trust. After the sister’s death in 2012, her husband moved to partition the ranch property. The appellant filed a counterclaim alleging breach of an oral contract. The appellee moved for and was granted summary judgment on his affirmative defense of the statute of frauds.

Decision:The appellate court affirmed the trial court’s decision to sustain objections that affidavits from appellant and his family contained hearsay, conclusory statements, and improper legal conclusions. The court found that the state of mind hearsay exception was inapplicable because statements allegedly made by appellants’ sister about transferring the ranch into a trust involved statements of “past external facts” rather than her present spontaneous thoughts.
Accordingly, the appellate court found that the warranty deed standing alone did not raise a fact issue on partial performance. The appellate court also found that the quasi estoppel exception had not been established because it relied on affidavits consisting of hearsay that were appropriately excluded from the summary judgment record.

In the Estate of Mildred Ozella Favor Pursley a/k/a Mildred F. Pursley, Deceased
Texas Court of Appeals, Thirteenth District— November 24, 2015

Background: The appellant moved to probate his mother’s 2007 will and 2010 codicil and the appellees, his brothers, filed an opposition to the application, alleging that the will and codicil breached the terms of a 1975 contractual will executed by their mother and her husband who predeceased her. The trial court granted the appellee’s summary judgment and imposed a constructive trust on their mother’s estate in favor of the 1975 will’s provisions. The appellant argued on appeal that the 1975 will was not a contractual will, the later will and codicil did not breach the terms of the 1975 will, and the 1975 will was ambiguous.

Decision: The appellate court found that the joint will entered into in 1975 was a contractual will. It noted that the use of the plural pronouns in the instrument alone did not establish it as a contractual will, but was some evidence of an intention for both testators to treat their property as a single estate. It found that the trial court correctly imposed a constructive trust over the estate in order to enforce the terms of the 1975 will.

In re Michael A. Bloom
Texas Court of Appeals, Fifth District, at Dallas — December 9, 2015

Background: A daughter filed an application for letters of dependent administration and for declaration of heirship after her mother died intestate. The decedent’s son filed a motion to dismiss the application on the basis the court lacked subject-matter jurisdiction because the daughter failed to allege the decedent owned or was entitled to property in the state at the time of death and the deficiency could not be corrected because the decedent transferred all assets to her son prior to her death. The trial court rejected the son’s argument that it lacked subject matter jurisdiction and issued monetary sanctions after the argument was re-urged in the son’s Rule 91a Motion to Dismiss that it ordered to be paid within seven days.

The daughter agreed to a seven day extension for payment of the sanctions, then filed for death penalty sanctions after allegedly learning that the “apparent undisclosed purpose of the extension request was to allow” the son to file a motion seeking relief from the sanctions order. The trial court granted the death penalty sanctions. The trial court also set aside the conveyances that were at issue, ordered that the property was vested in the decedent at the time of her death, and assessed attorneys’ fees to the daughter. The judgment remained interlocutory because of claims pending against another party alleged to have helped procure deeds from the decedent and the son sought mandamus relief from the sanctions.

Decision: The appellate court declined to grant mandamus relief, finding that the son would have an adequate remedy by appeal either when final judgment was rendered on the claims against the remaining party or after the claims resolved as to him were severed from the case.

In the Estate of Robert L. Wright
Texas Court of Appeals, Fourteenth District— December 15, 2015

Background: A decedent’s former employee contested a will probated in 2012, alleging forgery, undue influence, and a lack of testamentary capacity. The purported will left half of the decedent’s estate to a man who was also named independent executor. According to the former employee, the decedent had purchased the house for him, although he was never provided a deed. The decedent had once shown the former employee a will that provided for him to receive the home and the independent executor acknowledged that such a will had existed, but argued that it was superseded by a later will. Testimony was solicited at trial recounting a conversation in which the decedent reportedly stated he planned to leave all of his properties in West Columbia, Texas to the former employee. The trial court found the probated will valid, but also held that the decedent had gifted the home to the former employee and imposed a constructive trust over it. On appeal, the independent executor argued that testimony concerning statements made by the decedent regarding the gift of the house should have been excluded under the Dead Man’s Rule.

Decision: The court of appeals found that although the appellant had objected to some testimony concerning the oral gift of the house, there was testimony about a conversation with the decedent’s intent to gift the house that was not objected to, and as such even if the Dead Man’s Rule was applicable there was sufficient undisputed evidence to support the trial court’s decision. The court of appeals also upheld an award for attorneys’ fees, concluding that although not requested in the movant’s live pleadings, a post-trial, pre-judgment filing requesting attorneys’ fees served as a trial amendment.

Ritche Lee, C., as Trustee for the Dallas Gordon Rupe Trust, et al v. Rupe, Ann Caldwell as Trustee for the Dallas Gordon Rupe, III 1995 Family Trust
Texas Court of Appeals, Fifth District, at Dallas — January 12, 2016

Background: The founder of an investment corporation created a trust to hold his shares in the company for the benefit of his wife and children. The founder’s son in turn placed his shares in the company in a trust for a son he had by his second wife, who succeeded her husband as trustee after his death in 2002. The wife sought to sell the shares she received in the corporation back to the company, but was dissatisfied with the offers for the shares held in the trust and filed a shareholder oppression lawsuit and for breach of fiduciary duty against her late husband’s company, his sister, an attorney who held shares in the company and another shareholder. The wife prevailed at trial, but the Texas Supreme Court reversed judgment on the shareholder oppression claim and remanded to the appellate court for it to consider challenges to the informal fiduciary duty findings.

Decision: The appellate court found insufficient evidence that a confidential relationship existed between the wife and the defendants, as would be necessary to prevail on a breach of fiduciary claim. It found that the familial connections alone were insufficient to establish a confidential relationship and that the wife’s subjective feelings of trust likewise did not establish a confidential relationship. The court also rejected an argument that a fiduciary duty was owed to the trust through the wife as its trustee. It noted that a trust is not a legal entity and that the wife would have been required to show a confidential relationship existed between her as trustee and the defendants in their capacity as trustees.

Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al
Texas Court of Appeals, Tenth District — January 21, 2016

Background: Priscilla Foster, a slave born in 1827, had seven children by her “master”, who in 1875 placed a tract of land in trust that would later be used by Ms. Foster’s heirs. In 1922, the last of the four trustees made a number of conveyances to Ms. Foster’s children as grantees. The deeds reflected that the land had been paid for many years ago, but that no deeds had been made at that time. Many decades later, a dispute arose between the Known and Unknown Heirs of Priscilla Foster and a plaintiff who claimed to have acquired an interest in the property at dispute from the heirs of Alex Scott, one of the original “trustees.” The trial court awarded the disputed tracts to Ms. Foster’s heirs.

Decision: The appellate court held that Ms. Foster’s heirs had provided adequate proof to support their right to the property through adverse possession, noting that evidence had been introduced that her descendants had been working the land for at least the past 80 years.

In the Estate of Wade R. Bedell
Texas Court of Appeals, Fourth District, at San Antonio — February 3, 2016

Background: After a will executed in 2003 was admitted to probate, the decedent’s spouse applied to have a 2005 will admitted and challenged the 2003 will on the basis that it was revoked by the latter will. The spouse’s brother testified that he, a neighbor, and a notary were present when the 2005 will was signed. The neighbor testified that he had never seen the 2005 will, did not recall signing it, and would have recalled it due to the size of the document. The spouse’s brother testified the decedent’s spouse was present when the will was signed, while she testified that she was not. The notary, who was the secretary of an attorney, did not testify because she was in “very ill health.” The probate court judge, who was presiding over a bench trial, believed the neighbor’s testimony and found that the spouse failed to prove that the 2005 will was attested by two or more credible witnesses.

Decision: The spouse argued that even if the trial court did not believe the neighbor was a witness, the notary could be considered a witness. The appellate court rejected this argument on the basis that there was no testimony or other evidence that the notary’s signature meant she had actually witnessed the signing of the will.

In re Gene Timberlake, Individually and on Behalf of the Estate of Joan Hughes Timberlake
Texas Court of Appeals, Fourteenth District— December 3, 2015

Background: A decedent’s step-son filed suit seeking to remove the independent executor and to recover damages from her for allegedly breaching her fiduciary duty and from her spouse, who the step-son contended participated in the alleged breaches of duty. The trial court granted a directed verdict in favor of the executor and her spouse on some issues and the jury returned a unanimous verdict in favor of the step-son on the remaining issues, resulting in an order by the trial court that the executor be removed and that she and her spouse were jointly and severally liable for a $404,404.83 judgment. The trial court later granted the defendants’ request for a new trial. The step-son sought through a writ of mandamus to have the trial court’s order granting a new trial reversed.

Decision: The appellate court found that because the step-son had waited approximately 17 months from the signing of the order granting a new trial to seek mandamus relief, his request was barred by the doctrine of laches. The court did not accept the trial attorney’s busy schedule sufficient excuse to justify the delay. The appellate court also rejected an argument that the trial court lacked plenary power to order a new trial after the motion had already been denied by operation of law. The appellate court noted that under Tex. R. Civ. Pr. 329b(e), the trial court had the plenary power to grant a new trial up until 30 days after the motion was overruled by operation of law.


2016 Probate News

The number of parents who divide their estates unequally among their children is on the rise, according to a new study published by the National Bureau of Economic Research. The study’s authors found that among parents over 50 who reported having wills, the number treating their children unequally rose from 16% to 35% between 1995 and 2010. The trend was more prevalent among blended families, although the researchers also found that in families where a parent’s relationship with a stepchild had lasted longer than seven to 10 years, the stepchild was as likely to be included in a will as a genetic child.

Five cat caretakers have filed suit against the trustees of a fund established to provide food, shelter, and veterinary care to stray cats in Dixfield, Maine, according to the Portland Press Herald. The decedent reportedly left $200,000 in 2002 in a trust for abandoned cats, but since that time, the lawsuit alleges, only a few thousand dollars have been expended on the cats while attorneys’ fees have reached $16,000 and the estate’s trustees have received $22,000. The trustees have denied any wrongdoing.

The estate of Whitney Houston’s daughter, Bobbi Kristina, has filed suit against Houston’s aunt and grandmother alleging “breach of trust,” according to Radar Online. The lawsuit alleges that the co-trustees have impaired and impeded the proper administration of Kristina’s estate by not paying bills unless they first deem them “reasonable,” the website reports. The lawsuit is part of an ongoing legal struggle over the disposition of the multi-million dollar fortune left to Kristina after her mother’s death in 2012.


What is “Probate Litigation”?

Probate litigation involves disputes over the estate of a decedent. Frequently, these disputes arise over the validity of a will, which may be held invalid if it was not properly witnessed; if the maker of the will (the testator) did not have sufficient mental capacity; or if the testator was unduly influenced into making a will that did not accurately represent his or her intentions.

Probate litigation may also involve how an estate is being managed. Texas law allows for the appointment of an “independent executor” to manage an estate’s property who is subject to little judicial scrutiny after a court finds that they are qualified to serve. However, even if an individual has been approved to serve as an independent executor, Texas law provides that in some circumstances beneficiaries can seek to have that individual removed. Grounds for removal include (but are not limited) to misapplying or embezzling estate property. Independent executors are required to prepare an annual accounting describing the disposition of estate property, and failure to prepare an appropriate accounting may be grounds for removal.

Recent Probate News

  • A Texas court has recognized a common-law same sex marriage for the first time, according to the Houston Chronicle. Phrasavath and Stella Powell were married in 2008, and Powell passed in June 2014, after which a legal battle developed with Powell’s family over her estate and whether or not Phrasavath would be recognized as her spouse.
  • The estate of the music icon Jimi Hendrix is seeking the recovery of one of his guitars from an Arizona music store whose owner purchased the instrument for $80,000 last year for the Black Widow guitar, according to The Arizona Daily Star. The instrument is reportedly worth $750,000 to $1 million.
  • The possibility that a New York man could inherit up to $577,000 in life insurance proceeds after killing his fiancée has prompted New York lawmakers to consider updating the state’s slayer statute, according to The Auburn Citizen. Michael Moore admitted to killing his fiancée in 2013, but was found not criminally responsible after a court determined he was legally insane, and it is uncertain whether the state’s slayer statute applies when a killer is not found criminally liable due to mental illness.
  • Russian President Vladimir Putin may be poised to inherit an art collection worth up to $2 billion, according to a report in The Moscow Times. According to the owner, the collection was started by her husband’s grandfather, a stage actor who hid the artwork when the Bolsheviks began to take power in the early 20th century. Skeptics have questioned the true origin of the collection, with some speculating the works were actually seized by Russian soldiers in Germany during World War 2, and others questioning the actual value and legitimacy of the artwork.


Recent Probate Appellate Decisions

Bloom v. Swango
Texas Court of Appeals, Fifth District, at Dallas — October 5, 2015

Background: The son of a deceased woman opposed her daughter’s motion to open a dependent administration on the basis that the probate court lacked subject-matter jurisdiction and that the decedent’s daughter had not established that the decedent owned or was entitled to property at the time of her death. The son offered evidence purporting to show that the decedent had executed a deed and conveyance and assignment of property that transferred all of her real and personal property (other than an interest in a family trust) to him upon her death. The appellate court overruled the son’s motion, and the son appealed the judgment declaring heirship.

Decision: The appellate court found that because there was sufficient evidence to raise a question of fact as to whether or not the decedent owned or was entitled to property at the time of her death, the trial court had jurisdiction to conduct the heirship proceeding.

In the Estate of Adel Sheshtawy, Deceased
Texas Court of Appeals, Fourteenth District, at Houston — September 29, 2015

Background: A woman whose common-law husband died while a divorce proceeding was still underway filed suit to enjoin his estate’s administrator from selling the couple’s residence. She argued that the home qualified as her homestead under the Texas Constitution and Texas Estates Code and thus could not be lawfully sold. The estate sought to dismiss the injunction on the basis that the widow had signed a settlement agreement waiving her homestead rights, and granting her daughter’s ad litem attorney the right to sell the home and use the proceeds to buy another house.

Decision: The appellate court upheld the probate court’s decision to dismiss the injunction request as a baseless motion under recently enacted Texas Rule of Civil Procedure 91a. The rule, which took effect in 2013, allows for the dismissal of a claim based on the pleadings if the court determines there is no support in law or in fact. The prevailing party is entitled to mandatory attorneys’ fees incurred in connection with the 91a motion and proceedings. The appellate court explained that:

  • A cause of action has no basis in law if the allegations taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought;
  • A cause of action has no basis in fact if no reasonable person could believe the facts as pleaded;
  • Pleadings are to be construed liberally in favor of the plaintiff, looking to the pleader’s intent and accepting as true the factual allegations in the pleading; and
  • The fair-notice pleading standard applied, i.e. that a petition is sufficient if it gives fair and adequate notice of the facts upon which the claim is based.

The appellate court found that the claim for an injunction had no basis in law or fact because the widow had signed a settlement agreement allowing the sale of the house, and had not pled any allegations such as fraud that would provide a legal basis for revocation of the agreement.

In re Sister Jan E. Renz
Texas Court of Appeals, Third District, at Austin — September 10, 2015

Background: Court ordered estate to pay attorneys’ fees and transfer certain assets while some claims were still pending.

Decision: Noting that although there is an exception to the “one final judgment” rule in probate proceeding, the Third Court of Appeals found that to be appealable the trial court’s orders would have to either dispose of all parties or issues in a particular phase of the proceedings or must have been severed. The orders enforcing the settlement did not dispose of the claims against one of the parties, had not been severed, and as a result could not be immediately appealed. The appellate court further found that if the estate were required to immediately comply with the trial court’s orders to transfer assets to the trust and pay attorney’s fees it would lose the ability to maintain the status quo while obtaining appellate review of those orders, and as such the trial court had abused its discretion in requiring immediate payment of attorneys’ fees.

In the Estate of Martin Van Curtis, Jr.
Texas Court of Appeals, Ninth District, at Beaumont — September 24, 20015

Background: A decedent’s former spouse filed a bill of review seeking to reverse a trial court’s disposition of marital property in a divorce proceeding she alleged her husband had fraudulently led her to believe had been dismissed.

Decision: Alleged statements by the husband that he changed his mind with respect to pursuing the divorce were barred by the Dead Man’s Statute, and thus could not be offered as evidence that the writ of divorce should be overturned. The court rejected the former spouse’s argument that the Dead Man’s Statute was waived by virtue of her having been cross-examined on the basis that such a waiver occurs only when an adverse party calls the witness and is inapplicable when the adverse party is merely cross-examining a witness. The former spouse also argued that the alleged statement had been corroborated by 1) testimony that following the discussion about a divorce the parties continued to cohabitate as husband and wife; 2) testimony that the former spouse would not have cohabitated with a man divorcing her; 3) testimony as to the lack of any further discussion of the divorce proceeding; and 4) that following the filing of the suit the default judgment was not obtained until August of 2010, whereas it could legally have been obtained in March 2010.

In the Estate of Rodney Joe Knight, Deceased
Texas Court of Appeals, Twelfth District, at Tyler — September 23, 2015

Background: A woman claiming she had an informal marriage with the decedent contested his brother’s application to probate the decedent’s will. The decedent’s brother countered that the woman lacked standing and was not an interested party because she was not married to the decedent. After the trial court admitted the will into probate, the woman appealed on the basis that a motion for continuance had been improperly denied and because she had not been provided 45 days’ notice of the hearing.

Decision: The appellate court found that the woman was not prejudiced by the trial court’s refusal to grant the motion for continuance because the anticipated testimony of an unavailable witness had been addressed by a witness who was available to testify. Decedent’s brother argued that the 45 days’ notice required by Rule 245 was inapplicable to a hearing, but the court found that it “may apply” because the hearing at issue disposed of all contested issues. However, it found that because the woman did not object to lack of proper notice she waived any error based on lack of notice.

What stages are there in probate litigation?

Probate litigation often involves complicated legal issues, as well as a vast collection of evidence that should be carefully considered by an attorney with experience assessing how that evidence may be used at trial and whether there are any grounds to object to its admission. Every case is unique, but in general the stages of a lawsuit involving an estate dispute will include:

  • Written Discovery: a process in which each side may request documents, such as prior drafts of wills, medical records, letters, and financial records, as well as responses to written questions. In a will contest, the relationship between the decedent and the parties is often closely scrutinized, and as such the scope of relevant documents may be quite broad, particularly with the large volume of e-mails, text messages, and social media that many individuals generate over the course of a lifetime. A careful analysis of these documents and the evidentiary rules governing whether or not they may be admitted may prove critical to the outcome of a claim.
  • Depositions: A process in which a witness is questioned by opposing counsel regarding either their knowledge of the relevant facts or their expert opinions. As with written discovery, the number of individuals whose testimony may prove significant may be extensive and may include family, friends, business associates, and physicians, among others. Counsel must carefully weigh the value of each potential witness’ testimony against the cost of preparing for and taking a deposition.
  • Summary Judgment: Texas law provides for the pre-trial dismissal of claims in circumstances where there is no legal or factual support. In a “traditional” motion for summary judgment, each side will prepare briefs citing to Texas law and prior court decisions in support of their respective legal positions. In a “no evidence” motion for summary judgment, the respondent must compile evidence gathered from written discovery and through depositions and demonstrate to the judge that there is at least some evidence in support of their claims. Defendants in probate litigation will often use a no-evidence motion for summary judgment as a tool to obtain a preview of the contestants’ trial strategy.
  • Mediation: Mediation is a process intended to encourage pre-trial resolution of disputes. In mediation, each side visits confidentially with a neutral attorney whose goal is to guide the parties to a successful settlement of the dispute. Mediators will often meet separately with each side and emphasize the perceived legal and/or factual weaknesses in order to encourage them to settle. Mediation, like a no-evidence summary judgment proceeding, may provide some insight into what the other side is likely to focus on should the case proceed to trial.
  • Experts: Both sides may retain experts and must designate them prior to trial. The experts’ opinions must be disclosed, and each side will have an opportunity to depose the opposing experts to further explore their opinions. In a case involving mental capacity, experts may include neuropsychologists and treating physicians, as well as forensic psychiatrists who can evaluate medical records and other documents to assess the decedent’s mental abilities after death.
  • Pre-Trial: Trial preparation includes making decisions about which evidence and which witnesses to present; meeting with witnesses to discuss their anticipated testimony and the questions they are likely to be asked by opposing counsel; and, evaluating what evidence and testimony opposing counsel is likely to attempt to introduce to the jury and objecting in advance through a motion in limine, i.e. a motion requesting that the opposing counsel approach the judge for permission prior to asking certain questions in front of the jury.
  • Voir Dire: Prior to trial, a jury is selected through a process called voir dire. In this process, each side has an opportunity to visit with a large group of potential jurors and question them about possible conflicts and biases. After potential jurors who have biases or conflicts are removed “for cause”, each side is permitted a certain number of “strikes”, allowing them to remove additional potential jurors. The jury is then drawn from the first of the remaining panel members.
  • Trial: The contestants in a will contest will have the opportunity to present their witnesses, and may in some circumstances choose to call what they anticipate will be hostile witnesses if called for by prudent case strategy. Considerations must be given to the effect of evidentiary rules governing admissible testimony, such as the numerous hearsay exceptions and the Dead Man’s Rule, which prohibits an interested party from repeating a decedent’s oral statements without corroboration unless called by the opposition.

After the contestants present their case, the defendant may move for a “directed verdict”, i.e. a process similar to summary judgment in which the contestants must establish that they have presented enough evidence to warrant having the jury decide the case. The defendant may then present its case, after which the contestants will have an opportunity to present rebuttal witnesses and evidence.

Testamentary Capacity: A Closer Look

The proof required to probate a will requires the applicant to show that at the time the will was signed, the testator was of “sound mind” (often referred to as testamentary capacity), meaning he had sufficient mental ability to:

      • Understand the business in which he is engaged;
      • Understand the effect of his act in making the will;
      • Know the general nature and extent of his property;
      • Recognize his next of kin and the natural objects of his bounty; and
      • Have sufficient memory to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment.

The person submitting the will to the court for probate must show that all of these elements were satisfied when the will was signed before the court will accept the will as valid. Prior to probate, a will may be more vulnerable to a contest because the burden of proving each of the above elements is on the will proponent, as opposed to the contestants.

A will may still be challenged after it has been probated, but the burden then shifts to those who contest it to demonstrate that any one of the above elements is lacking. For example, even if an individual is able to recognize his family members, if his mental abilities are impaired such that he is unable to understand the general nature and extent of his property, a jury could find that he lacked the testamentary capacity.

Witnesses to the signing of a will are often going to be important witnesses when testamentary capacity is at issue. However, although the issue to be decided in court is whether a testator lacked testamentary capacity at the time the will was executed, evidence may in some circumstances be offered the testator’s mental condition on earlier occasions.

Evidence regarding the testator’s state of mind prior to the execution of the will is generally only permitted upon a showing that the testator had a persistent condition that would not likely have resolved by the time of the will signing. For example, evidence that an individual had a progressive mental disease may be admissible to show that because the testator lacked testamentary capacity months or years prior to signing the challenged will, he more than likely also lacked testamentary capacity on the date he signed the will.

If testamentary capacity is at issue in a will contest, potential witnesses may include experts such as physicians and psychologists, as well as business acquaintances, friends, family members, and virtually anyone who has met the testator under circumstances in which they could form an opinion regarding the testator’s mental abilities. Although Texas’ evidentiary rules limit the type of testimony non-expert witnesses may make, the rules do permit a lay witness to testify as to opinions or inferences which are rationally based on the perceptions of the witness if they are helpful to the determination of a fact in issue. A lay witness would likely not be allowed to testify that a testator “had Alzheimer’s disease and could not have had testamentary capacity,” but might be allowed to testify that a testator seemed to be having memory trouble, or was acting in a manner that was similar to other individuals with the same condition.

Potentially significant evidence includes observations of the testator experiencing memory lapses; confusion; failing to recognize family members; difficulty managing or understanding finances and investments; and an inability to understand an estate plan. Whether or not this testimony is allowed into evidence may be hotly contested, and is not guaranteed.

Whether or not certain testimony and other evidence will be admitted into trial is generally not determined until a pre-trial hearing that may not be held until a week or two prior to trial, often long after litigation was commenced and each side’s case thoroughly developed. Accordingly, careful consideration must be given not only to whether each piece of evidence tends to prove or disprove testamentary capacity, but also whether a judge is likely to admit that evidence based on the Texas Rules of Evidence, prior cases interpreting those rules, the arguments of the attorneys, and the judge’s own interpretation of the law.

A will contestant who can demonstrate that the testator had a persistent mental condition prior to the execution of a challenged will may have a much stronger case, and medical records and physician testimony may be some of the most compelling evidence. A diagnosis of Alzheimer’s disease or other forms of dementia will not alone be sufficient to prove lack of testamentary capacity, but will at least potentially provide a stronger case that the testator had a persistent condition prior to the signing of the will, opening the door to a potentially much larger array of other evidence and testimony from those who have observed the testator in prior months or years.

Obtaining medical records early in a case is often important. Estates Code § 55.101 provides that a person who is  a party to a will contest or proceeding in which a party relies on the mental or testamentary capacity of a decedent as part of the party’s claim or defense is entitled to production of “all communications or records relevant to the decedent’s condition before the decedent’s death.” Under Estates Code § 55.102, a party may medical records through issuance of a subpoena. Together, these provisions allow an attorney to obtain and evaluate medical records early in the litigation process and begin evaluating not only the strengths and weaknesses of the medical evidence, but also whether or not the testator’s condition prior to executing the will was persistent, justifying the admission of lay witness testimony and other evidence that may otherwise be excluded.

A diagnosis of Alzheimer’s disease, vascular dementia, Lewy Body dementia, or other form of brain disorder may suggest a capacity issue, but does not alone establish that an individual lacked testamentary capacity. Likewise, the absence of a diagnosis of a brain disorder does not establish an individual had testamentary capacity. Courts have admitted evidence and expert testimony regarding a broad spectrum of other medical conditions that either by themselves or in conjunction with multiple additional conditions impaired the testator’s mental abilities to the extent he could not have formed testamentary capacity. A sample of some of the types of medical conditions that have been among the medical issues in cases involving testamentary capacity include:

  • Cancer;
  • Liver failure;
  • Anemia;
  • Arteriosclerosis;
  • Stroke;
  • Chronic alcoholism;
  • Diabetes and associated complication;
  • Coronary heart disease;
  • Atrial fibrillation;
  • Heart attack; and
  • Kidney disease.

A litigator with significant trial experience may be able to help anticipate certain evidentiary disputes in advance of a pre-trial hearing and potentially avoid costly surprises. Although no attorney can predict how a court will rule on disputed matters of law, an early evaluation of the evidentiary issues likely to be litigated may be advisable to help assess the viability of challenging or defending a will.


Leonard J. Meyer, a senior partner who is board certified in Civil Trial Law, a distinction that only about 1% of licensed Texas attorneys hold. Mr. Meyer represents clients in litigation including will contests, disputes involving theft or mismanagement of estate assets, and challenges over the interpretation of wills and other estate planning documents. In April 2015, Mr. Meyer tried a will contest involving an estate valued at more than $30 million in Harris County and obtained a jury verdict in favor of the contests on all issues. Mr. Meyer’s passion for probate litigation is drawn from personal experience allowing him to empathize with clients and convey their feelings in the courtroom.

Colin L. Guy, an associate that is a member of Leonard J. Meyer’s litigation team. Prior to joining Mr. Meyer’s group at ZAMSW, Mr. Guy worked at a medical malpractice defense law firm, where he became familiar with the evaluation of medical records, working with medical experts, and attended numerous depositions of medical professionals. Mr. Guy applies his prior experience in health law to the evaluation of such matters as testamentary capacity and vulnerability to undue influence. Mr. Guy’s role in assisting Leonard J. Meyer in trying the April 2015 will contest included deposing the decedent’s treating physician and closely conferring with the contestant’s forensic psychiatric expert. Prior to graduating summa cum laude from South Texas College of Law, Mr. Guy worked as a reporter at newspapers across Texas. He applies the research and investigation skills honed as a reporter to assist in the analysis and evaluation of complex cases. Mr. Guy also draws upon his years of experience interviewing a broad spectrum of individuals, ranging from a former U.S. President to hardened criminals, when examining the diverse witnesses that are often called upon to testify in probate proceedings.

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