50 State Undue Influence Project: Texas Undue Influence Expert Definitions
In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Forty-third up, Texas.
Long v. Long, 125 S.W.2d 1034, 1035 (1939):
The free will of a testator may be overcome by the improper actions or threats of others.
Rothermel, 369 S.W.2d 917, 923 (Tex. 1963):
To show undue influence, the contestant of a will must be able to show:
The existence and exertion of an influence;
That the influence subverted or overpowered the mind of the testator at the time of the execution of the testament; and
The maker would not have executed the testament but for that influence.
A list of factors that courts should consider (among other factors) are as follows:
The nature and type of relationship existing between the testator, the contestants, and the party accused of exerting such influence;
The opportunities existing for the exertion of the type of deception possessed or employed;
The circumstances surrounding the drafting and execution of the testament;
The existence of a fraudulent motive;
Whether there had been a habitual subjection of the testator to the control of another;
The state of the testator’s mind at the time of the execution of the testament;
The testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted;
Words and acts of the testator;
Weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise;
Whether the testament executed is unnatural in its terms of disposition of property.
The circumstances showing a will was consistent with undue influence cannot be equal to the circumstances showing a will was consistent with the absence of undue influence.
It cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence.
Griffin v. Griffin, 271 S.W.2d 714, 719 (Tex. Civ. App.—Texarkana, 1954):
Undue influence must be proved to have been exercised in relation to the will itself and not merely in other transactions. Mere persuasions, entreaties, or mere suspicion of undue influence will not invalidate a will on such grounds.
Green v. Earnest, 840 S.W.2d 119, 120 (Tex. App.—El Paso Oct. 7, 1992):
The will contestant can prove undue influence using circumstantial evidence alone, but the circumstances must be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised but that it controlled the will power of the testator at the precise time the will was executed (citing Kirkpatrick v. Raggio, 319 S.W.2d 362, 366).
Wood’s Estate, 542 S.W.2d 845, 846 (Tex. 1976):
The party contesting the will bears the burden of proving undue influence by a preponderance of the evidence.
In re: Estate of Ross (Tex. App.—Waco Nov. 30, 2011):
The contestant of a will must show more than an opportunity by the beneficiary to exert influence over the testator.
In re Estate of Coleman, 360 S.W.3d 606, 611 (Tex. App.—El Paso 2011):
If a will opponent’s challenges to a will are based on a confidential relationship between the testator and the will proponent, the opponent has the burden of establishing a confidential relationship.
Gray, 428 S.W.3d at 316:
Fiduciary relationships take two forms:
A formal fiduciary relationship arising as a matter of law, such as between partners or an attorney and a client; and
An informal or confidential fiduciary relationship arising from a moral, social, domestic, or merely personal relationship where one person trusts in and relies on another.
A confidential fiduciary relationship may exist where influence has been acquired and abused or where confidence has been reposed and betrayed.
Smith v. Deneve, 285 S.W.3d 904, 911 (Tex. App.—Dallas 2009):
Evidence of a romantic relationship, even a long-standing one, does not constitute evidence of a fiduciary relationship.
Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex. Civ. App.— Fort Worth 1952):
A presumption of fraud or undue influence does not usually apply where confidence is reposed by one in another.
Estate of Danford, 550 S.W.3d 275, 281–82 (Tex. App.—Houston [14th Dist.] 2018):
A will contestant may raise a presumption of undue influence by introducing evidence of a fiduciary relationship between the testator and the will proponent.
Fielding v. Tullos, No. 09-17-00203-CV, 2018 WL 4138971 (Tex. App.— Beaumont Aug. 30, 2018):
The presumption of undue influence after evidence of a fiduciary relationship is rebuttable. In other words, the rebuttable presumption shifts only the burden of production and does not shift the ultimate burden of proof.