pjc-family-2024-lib

PJC 230.5

W ILL C ONTESTS

PJC 230.5

Undue Influence

QUESTION ______ Did DECEDENT sign the document dated DATE as a result of undue influ ence? “Undue influence” means that— 1. an influence existed and was exerted, and 2. the influence undermined or overpowered the mind of the decedent at the time he signed the document , and 3. the decedent would not have signed the document but for the influ ence. Answer “Yes” or “No.” Answer: _______________ COMMENT Source. The foregoing submission is based on Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963), and In re Estate of Woods , 542 S.W.2d 845, 847 (Tex. 1976). Burden of proof. The burden of proof is on the contestant whether the contest is filed before or after the will is admitted to probate. “The burden of proving undue influence is upon the party contesting its execution.” Rothermel , 369 S.W.2d at 922. But see In re Estate of Danford , 550 S.W.3d 275, 282 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“Once a contestant presents evidence of a fiduciary relationship, a presumption of undue influence arises and the will proponent bears the burden to produce evidence showing an absence of undue influence.”); In re Estate of Grogan , 595 S.W.3d 807, 818 (Tex. App.—Texarkana 2020, no pet.) (once evidence has been introduced that contradicts the presumption, “the presumption is extinguished,” and “[t]he case then proceeds as if no presumption ever existed”) (internal citations omit ted). Cf. Tex. Est. Code §§ 751.022, 751.101 (relating to powers of attorney). Identifying document. Any appropriate wording to identify the document may be used in place of the document dated DATE in the question. For example, the docu ment might be identified by its exhibit number. Testamentary incapacity as alternative basis. At least one court of appeals has held that testamentary incapacity and undue influence are not necessarily mutually exclusive. In re Estate of Lynch , 350 S.W.3d 130 (Tex. App.—San Antonio 2011, pet. denied).

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