pjc-family-2024-lib

E XPRESS T RUSTS

PJC 235.3

PJC 235.3

Undue Influence

QUESTION ______

Did SETTLOR 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 person executing the document at the time of its execution, and 3. the person would not have executed the document but for such influence. Answer “Yes” or “No.” Answer: _______________ Source. The foregoing submission is based on Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963). Burden of proof. “The burden of proving undue influence is upon the party con testing its execution.” Rothermel , 369 S.W.2d at 922 (citing Scott v. Townsend , 166 S.W. 1138 (Tex. 1914)). 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 omitted). 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. COMMENT

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