law-undue-influence | will contest | capacity
UNDUE INFLUENCE (MAKING OR CHANGING OF WILL)
A person of sound mind has the right to dispose of his or her property in the manner he or she
wishes. Rothermel v. Duncan, 369 S.W.2d 917, 923 (Tex. 1963). To establish undue influence, the
Texas Supreme Court has stated that the party must show: (1) the existence and exertion of
influence; (2) the effective operation of an influence so as to subvert the will or overpower the mind
of the grantor at the time of the execution; and (3) the execution of an instrument the maker would
not have executed but for such influence. Id. at 922. There must be some evidence to show that the
influence was not only present, but was exerted with respect to making the instrument. Id.; Cotten v.
Cotten, 169 S.W.3d 824, 827 (Tex. App.-Dallas 2005, pet. denied). Mere requests or efforts to
execute a favorable instrument are not sufficient to establish undue influence unless the requests
or efforts are so excessive so as to subvert the will of the maker. Curry v. Curry, 153 Tex. 421, 270
S.W.2d 208, 212 (1954).
Undue influence may be proven by circumstantial, as well as direct, evidence. See Rothermel, 369
S.W.2d at 922; see also Peralez v. Peralez, No. 13-09-00259-CV, 2010 Tex. App. LEXIS 4781, at
**12-13 (Tex. App.-Corpus Christi June 24, 2010, pet. denied) (mem. op.). "More often than not,
undue influence is impossible to establish by direct proof, and may only be shown by
circumstances." In re Olsson, 344 S.W.2d 171, 173-74 (Tex. Civ. App.-El Paso 1961, writ ref'd
n.r.e.). When determining a claim of undue influence, it is proper to consider all evidence of
relevant matters that occurred within a reasonable time before or after the will's execution. Watson
v. Dingler, 831 S.W.2d 834, 837 (Tex. App.-Houston [14th Dist.] 1992, writ denied).
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