Randall L. Neal v. David Cullen Neal ( 2021 )

Opinion issued March 18, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00427-CV
———————————
RANDALL L. NEAL, Appellant
V.
DAVID CULLEN NEAL, Appellee
On Appeal from the Probate Court No. 1
Travis County, Texas
Trial Court Case No. C-1-PB-15-001898
MEMORANDUM OPINION
This is a will contest case. Appellant, Randall L. Neal, and appellee, David
Cullen Neal, are both children of the decedent, Florene Swensen Neal. After Florene
died in 2015, Randall applied for letters of dependent administration and a
determination of heirship, alleging that Florene died without a valid will. David
offered a will dated January 23, 2012, for probate as a muniment of title. The probate
court admitted the January 2012 will to probate as a muniment of title and denied
Randall’s application.
On appeal, Randall argues that the probate court erred in admitting the January
2012 will to probate because (1) the court’s finding that Florene had testamentary
capacity when she executed the will is contrary to the great weight of medical and
testimonial evidence presented at trial, and (2) the court erroneously disregarded
evidence of undue influence in execution of the will. We affirm.
Background
A. The Decedent’s Wills
Florene Neal was married three times and had three adult sons: John Edwin
Preece, Randall Neal, and David Neal. Her third husband, Archie Neal, died in July
2009. Florene did not remarry.
Florene executed several wills during her life. On June 14, 2008, while her
husband was still alive, she executed a will naming her eldest son John as
independent executor and devising her entire estate to her husband. If her husband
did not survive her, she devised her estate to John, Randall, and her two stepchildren
in equal shares. Florene expressly stated in this will that she was not including David
in the division of her estate because, upon her death, he would get full ownership of
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a piece of real property in Pflugerville, Texas (the Pflugerville property), which they
owned as joint tenants with right of survivorship. One of the witnesses to the
execution of this will was Melissa Ferringer, an attorney.
Florene executed a second will on November 9, 2009, after her husband
passed away. This will also named John as independent executor. The second will
contained twenty-one specific bequests to various family members, including
Randall, David, Florene’s sister, her niece, and her grandchildren. Florene devised
the residuary of her estate to John, Randall, and David, in equal shares. Ferringer
witnessed the execution of this will as well.
Florene executed a third will on April 13, 2011. This will, like the previous
two wills, named John as independent executor. This will included the same twenty-
one specific bequests as the second will, but divided the residuary estate between
John and Randall in equal shares. The third will, like the first will, stated that David
was not included in the division of the residuary estate because he would receive full
ownership of the Pflugerville property upon Florene’s death. Ferringer did not
witness the execution of this will.
Finally, Florene executed a fourth will on January 23, 2012. This will named
David as independent executor. On this same date, Florene executed a durable and
a medical power of attorney that named David as her attorney-in-fact. The January
2012 will contained no specific bequests and devised all of Florene’s estate to David.
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The will also stated: “It is my express intent to disinherit my other two children,
Randall (Randy) Neal and John Edwin Preece, as identified in Section I [identifying
Florene’s family], as beneficiaries to my estate.” Ferringer prepared this will for
Florene. It is the validity of this will that is at issue in this case.
Florene died on July 28, 2015, in Austin, Texas.1 She was seventy-four years
old.
B. Initial Probate Proceedings
In April 2016, Randall filed an “Application for Letters of Dependent
Administration and a Determination of Heirship.” In this filing, Randall alleged that
Florene had no valid will at the time of her death and therefore died intestate. He
alleged that any will purporting to be Florene’s last will that might be offered for
probate by his younger brother David was not valid because Florene lacked
testamentary capacity at the time she executed the will. Randall alleged that each of
Florene’s three sons had a one-third interest in the property of her estate. Randall
further alleged that a necessity existed for administration of the estate to dispose of
the estate’s liabilities and distribute its assets, which consisted of real and personal
property valued over $50,000. Randall also alleged that an administration was
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Third District of Texas to this Court pursuant to its docket-equalization authority.
See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”).
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necessary because David had wrongfully converted property belonging to Florene
and the estate.
In January 2017, David filed an application to probate Florene’s January 2012
will as a muniment of title.2 He alleged that the will named him as independent
executor. He further alleged that, to the best of his knowledge, the estate did not have
any debts and, therefore, an administration of the estate was not necessary.
Randall opposed admitting the January 2012 will to probate. He argued that
Florene had been diagnosed with vascular dementia in August 2011—five months
before execution of the will—and therefore lacked testamentary capacity at the time
she executed the will. He also argued that David exerted undue influence to force
Florene to execute the January 2012 will. According to Randall, Florene previously
executed a will that “more evenly apportioned the Estate among her three children,”
but David assumed control over Florene after her dementia diagnosis and forced her
to execute a will that left her entire estate to him. Randall further accused David of
forcing Florene to grant him power of attorney, and then using that authority to keep
Florene away from her other children.
2
See TEX. EST. CODE ANN. § 257.001 (providing that court may admit will to probate
as muniment of title if court is satisfied will should be admitted to probate and court
(1) is satisfied that estate does not owe unpaid debts, other than debts secured by
lien on real estate, or (2) finds for another reason that there is no necessity for
administration of estate).
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C. Hearing Before the Probate Court
The probate court began a hearing on David’s application to probate the
January 2012 will as a muniment of title on April 19, 2018. David testified on his
own behalf. Randall, Lorraine Smith (Florene’s twin sister), and Louise Preece
(John’s wife, and Florene’s daughter-in-law) all testified in support of Randall’s
position.
Following conflicting testimony on where Florene had resided in late 2011
and early 2012, the probate court recessed the hearing so the parties could obtain
records from the assisted living facility and nursing home that cared for Florene.3
The probate court also recessed the hearing so the parties could obtain the presence
of Ferringer, Florene’s attorney who prepared the January 2012 will.
The probate court resumed the hearing nearly one year later, on March 26,
2019. At that resumed hearing, Ferringer testified that she believed that Florene was
of sound mind when she executed the will and that Florene was not under the
influence of anyone at the relevant time periods.
Over the course of the hearings, the probate court admitted several exhibits
including Florene’s current and prior wills, her banking records with shifting
payable-on-death beneficiaries, and her medical records. Florene’s medical records
3
These records were admitted at the continuation of the hearing and reflected that
Florene moved into Horizon Bay, an assisted living facility, in November 2012.
There is no documentary evidence reflecting where Florene lived in January 2012.
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included records from a stroke that occurred in July 2011, a diagnosis of vascular
dementia that year, and her dementia care following that diagnosis.
On April 17, 2019, the probate court signed an order admitting Florene’s
January 2012 will to probate as a muniment of title. Among other recitations in the
order, the probate court found that Florene “was of sound mind” on the date she
executed the will. The probate court did not make a specific finding concerning
undue influence. In a separate order signed the same day, the probate court denied
Randall’s application for letters of dependent administration and a determination of
heirship. This appeal followed.
Testamentary Capacity
In his first two issues, Randall argues that the probate court’s finding that
Florene had testamentary capacity when she executed the January 2012 will was
contrary to the great weight and preponderance of medical and testimonial evidence
presented at trial.
A. Standard of Review
In an appeal from a bench trial, the trial court’s findings of fact have the same
weight as a jury’s verdict. HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190
S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We therefore
review the trial court’s findings for legal and factual sufficiency using the same
standards that we use to review a jury verdict. Tex. Outfitters Ltd. v. Nicholson, 572
7
S.W.3d 647, 653 (Tex. 2019); HTS Servs., 190 S.W.3d at 111. When there is a
complete reporter’s record, findings of fact are not conclusive, and they are binding
only if supported by the evidence. HTS Servs., 190 S.W.3d at 111.
When conducting a factual sufficiency review, we consider all the evidence
in a neutral light. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per
curiam); Woods v. Kenner, 501 S.W.3d 185, 196 (Tex. App.—Houston [1st Dist.]
2016, no pet.). We will reverse only if the evidence is so weak or the finding is so
against the great weight and preponderance of the evidence that it is clearly wrong
and unjust. Dow Chem. Co., 46 S.W.3d at 242; Woods, 501 S.W.3d at 196.
In a bench trial, the trial court is the sole judge of the witnesses’ credibility,
and the court may choose to believe one witness over another. Woods, 501 S.W.3d
at 196 (citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003), and Zenner v. Lone Star Striping & Paving, L.L.C., 371 S.W.3d 311, 314
(Tex. App.—Houston [1st Dist.] 2012, pet. denied)). The trial court may resolve any
inconsistencies in a witness’s testimony, but it is not free to believe testimony that
is conclusively negated by undisputed facts. Zenner, 371 S.W.3d at 314 (quoting
City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005)). We may not substitute
our judgment for that of the trial court. McKeehan v. Wilmington Sav. Fund Soc’y,
FSB, 554 S.W.3d 692, 698 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Woods,
501 S.W.3d at 196.
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B. Law Governing Testamentary Capacity
Before a court admits a will to probate, the proponent of the will must
establish that the will was properly executed and that the testator had testamentary
capacity at the time of execution. In re Estate of Danford, 550 S.W.3d 275, 281 (Tex.
App.—Houston [14th Dist.] 2018, no pet.); In re Estate of Arrington, 365 S.W.3d
463, 466 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (stating that to admit will
to probate, trial court must find that it is valid, and proponent of will has burden to
establish validity). The proponent of the will may make a prima facie case on these
issues by introducing a self-proving will into evidence. Estate of Danford, 550
S.W.3d at 281; see TEX. EST. CODE ANN. § 251.101(1) (providing that self-proved
will is will with attached or annexed self-proving affidavit subscribed and sworn to
by testator and witnesses), § 251.104 (setting out requirements for self-proving
affidavit); Estate of Arrington, 365 S.W.3d at 467 (“A self-proved will is prima facie
evidence that the will was properly executed.”). The burden of producing evidence
that negates testamentary capacity shifts to the contestant of the will, although the
burden of persuasion on the issue always remains with the will’s proponent. Estate
of Danford, 550 S.W.3d at 281; In re Estate of Coleman, 360 S.W.3d 606, 611 (Tex.
App.—El Paso 2011, no pet.).
A testator has testamentary capacity when, at the time of the execution of the
will, she possesses sufficient mental ability to (1) understand the business in which
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she was engaged, the effect of making the will, and the general nature and extent of
her property; (2) know her next of kin and the natural objects of her bounty; and
(3) have sufficient memory to assimilate the elements of executing a will, to hold
those elements long enough to perceive their obvious relation to each other, and to
form a reasonable judgment as to them. Estate of Danford, 550 S.W.3d at 281; Estate
of Arrington, 365 S.W.3d at 467–68; Guthrie v. Suiter, 934 S.W.2d 820, 829 (Tex.
App.—Houston [1st Dist.] 1996, no writ).
The key to this inquiry is whether the testator had testamentary capacity on
the day the will was executed. Estate of Danford, 550 S.W.3d at 281; Estate of
Arrington, 365 S.W.3d at 468. This may be inferred from the testimony of lay and
expert witnesses concerning their observations of the testator’s conduct prior or
subsequent to the execution of the will. Estate of Danford, 550 S.W.3d at 281(quoting In re Estate of O’Neil, No. 04-11-00586-CV, 2012 WL 3776490, at *6
(Tex. App.—San Antonio Aug. 31, 2012, no pet.) (mem. op.)); Horton v. Horton,
965 S.W.2d 78, 85 (Tex. App.—Fort Worth 1998, no pet.) (stating that while
“ultimate question” is whether testator had capacity on date will was executed, “the
court may also look to the testator’s state of mind at other times if these times tend
to show his state of mind on the day the will was executed”). Evidence that the
testator was incompetent at other times can be used to establish a lack of
testamentary capacity on the day the will was executed if the evidence “demonstrates
10
that the condition persists and ‘has some probability of being the same condition
which obtained at the time of the will’s making.’” Croucher v. Croucher, 660
S.W.2d 55, 57 (Tex. 1983) (quoting Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968));
Estate of Arrington, 365 S.W.3d at 468; Horton, 965 S.W.2d at 85 (“Such evidence
may be considered only if it demonstrates that a condition affecting the individual’s
testamentary capacity was persistent and likely present at the time the will was
executed.”).
C. Analysis
Randall contends that the probate court’s finding that Florene had
testamentary capacity when she executed the January 2012 will was against the great
weight and preponderance of both the testimonial and medical evidence presented
to the court.
In support of his argument, Randall primarily points to Florene’s medical
records from 2011–2013. These records demonstrate that Florene had a stroke in
July 2011, and she was subsequently diagnosed with cerebrovascular disease and
dementia. The records, from both her primary care physician and a home healthcare
agency, reflect that Florene had cognitive deficits, including hallucinations,
confusion, and problems with her short-term memory. The records from July
through September 2011 repeatedly note that Florene was forgetful and needed some
assistance to remember recent events. For example, a record from August 9, 2011,
11
included a notation that Florene “incorrectly recalled plans with her family today for
a relative[’]s [birthday]” and she “forgot which son she was talking to on the phone
the other day.”
Throughout this time, Florene needed assistance in performing tasks such as
dressing herself and preparing meals, and she was no longer allowed to drive. The
records also reflect that Florene’s condition improved throughout August and
September 2011, that she practiced journaling and used calendar aids to help with
her short-term memory problems, and that, by September 2011, she was no longer
considered “homebound.” A notation on a record from September 23, 2011, states,
“vascular dementia stable at this time.”
The medical records admitted into evidence run primarily from July 2011
through September 2011 and then from June 2012 through 2013, after Florene
moved to an assisted living facility and then into memory care. The records from
2012 indicate that Florene’s memory problems continued to worsen. She continued
to have occasional hallucinations and altered mental status. A note from a doctor’s
visit on July 13, 2012, states that “Patient continues to have mild dementia although
very functional at this time.” However, at one point in September 2012, Florene told
a nurse that she wanted to remove David from her HIPAA authorization and add
Lorraine, but her doctor stated that “she is not lucid enough to remove her son from
her [HIPAA] form at this time.” Other records from this period of time reflect that
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she was able to have meaningful conversations, recognize familiar faces, find her
way home, and remember where she lived. In November 2012, Florene moved to
the Horizon Bay assisted living facility, and she remained in assisted living facilities
or nursing homes for the remainder of her life.
In addition to Florene’s medical records, Randall, Lorraine, and Louise all
testified that they did not believe Florene was of sound mind during 2011 and 2012,
and they did not believe Florene could have appreciated the complexities of
executing a testamentary document. These witnesses all testified that, by January
2012, Florene had been diagnosed with vascular dementia; she had had visual
hallucinations; she had compromised vision; and she needed 24-hour care to assist
her with daily activities such as feeding, dressing, and bathing herself.
Randall also testified that Florene’s short-term memory deficits were serious
enough that she forgot who visited her and what she had eaten the day before. Louise
testified that, in August 2011, Louise’s daughter had temporarily moved in with
Florene to assist her, but her daughter was overwhelmed and could not provide the
needed care.
Randall also testified that an incident occurred in September 2011, in which
Florene, with Ferringer’s assistance, “kicked [him] out of [her] house.” He did not
see her again until the second or third week of January 2012. He stated that Florene
was living at the Pflugerville property at that time. While David was not living there,
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David’s son and his girlfriend were living there and were helping care for Florene.
Randall spent about an hour and a half with Florene on this occasion. He did not
provide any details about this visit or Florene’s condition at the time. Randall
testified that he next saw Florene in April 2012, also at the Pflugerville property, and
then again in August 2012. He stated that he spoke with her over the phone “at least
four or five times a week,” and Florene knew who he was “[m]ost of the time.”
Lorraine testified that in the latter half of 2011, she typically visited Florene
once a week and would sometimes take her to doctor’s appointments. Lorraine
would spend two to three hours visiting Florene at Florene’s house, and they would
socialize or watch television. Florene knew where she was living, and Florene
always knew who Lorraine was. Lorraine had no recollection of any instance in
which Florene did not know who her children were. Lorraine could not recall when
Florene moved to the assisted living facility, but she visited Florene there at least
once and testified that Florene “had her own apartment.”
David agreed that Florene had “early-onset dementia” and “had issues,”
including hallucinations. He did not agree that Florene’s capacity was diminished,
as she “still made her own decisions.” He testified that Florene moved into an
assisted living facility in November 2011, she had started taking a new medication
at that time, and she was “actually much improved over where she had been.”
Florene no longer needed 24-hour care at this point, she was involved in choosing
14
which assisted living facility she wanted, and she lived by herself at the facility until
she was moved into a memory care unit in late 2012.
David was asked to review portions of the medical records during his
testimony. He explained that the period running from July through September 2011,
immediately after Florene’s stroke, “was about the worse she was.” She later
improved after moving to the assisted living facility in November 2011. Florene’s
medications changed and “she got active again.” David testified that Florene
improved to the point where she was able to take care of her daily activities,
including administering her medications. Also, she remembered who and where she
was. Although Florene made improvements after the stroke, she began to suffer more
symptoms of dementia in the latter part of 2012, which led to her being placed in a
memory care facility.
David believed that, in January 2012, Florene had sufficient mental ability to
understand that she was making a will and to understand the effect of making a will.
He also believed that Florene had sufficient mental ability to understand the general
nature and extent of her property, to know who her children and next of kin were,
and to gather that information and make a rational decision. He testified that
Florene—not David—was the one who called Ferringer to draft a new will in
January 2012. David also testified that he did not immediately offer the January 2012
will for probate after Florene died because Ferringer advised him that he did not
15
have to do so. David was also listed on Florene’s bank account, he owned the entire
Pflugerville property through right of survivorship, and other family members “got
what they wanted” out of Florene’s personal property when she went to the assisted
living facility.
Ferringer provided the only direct evidence of Florene’s condition at the time
she executed the January 2012 will. Ferringer first met Florene in 2004 or 2005. She
had also previously prepared wills for Florene and her husband before he passed
away in 2009 and for Florene individually. Ferringer considered Florene to be a
friend, and they would occasionally have lunch or dinner together. With respect to
the January 2012 will, Ferringer testified that Florene “sought [her] out and gave
[her] a call.” Just as she had on previous occasions, Florene told Ferringer that she
needed to make revisions to her will. When asked whether Florene discussed her
reasons for wanting to change her will, Ferringer testified:
She did. Because my—part of my practice when I would have a client
was have a consultation, either initially to figure out what their needs
are for their estate planning and also what they’re doing. It’s not my job
to judge them, but it’s my job to find out what they’re doing and why.
So she—since I had done previous [wills] for her, this particular last
one she asked me to do because a lot of the specific bequests that she
had in there were already given to people or quite frankly she told me
things have just disappeared, so those are no longer valid.
But the main reason she contacted me to draft a new will was because
she had some concerns that money was disappearing from her account.
She had another episode with her son [Randall] that upset her. And that
in particular—I don’t know the details, but I remember that she was
upset because she was at her house and he wanted to have her arrested.
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I don’t know anymore than that. She was upset about it and said enough
is enough, she needs to make some changes so I made the changes.
Ferringer stated that Florene also wanted to change her power of attorney from her
son John to David, and Ferringer prepared those documents for Florene as well. She
executed a new power of attorney on the same date that she executed the January
2012 will.
Ferringer believed that Florene had testamentary capacity to execute the
January 2012 will, as Ferringer would not have drafted the will for her otherwise.
Ferringer believed that Florene had the mental ability to understand the effect of
drafting the will. She stated that she and Florene spoke “at length” about whether
Florene was allowed to disinherit her children. Ferringer told Florene that this was
permissible and asked Florene why she would want to disinherit her sons. Florene
then shared her concerns. Ferringer testified that if a person lacked sufficient mental
capacity, “they wouldn’t have noticed things going on that [Florene] noticed.”
Ferringer stated that Florene’s changes to her will “did not seem out of the ordinary
for her situation.” She testified that there was no question that Florene knew the
extent of her property and who her children were. She stated that Florene articulated
specific reasons why she wanted to change her will, those reasons were rational, and
they were consistent with things Florene had said to Ferringer during previous
conversations.
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On cross-examination, Ferringer stated that, at the time she drafted the
January 2012 will, she was not aware that Florene had dementia or had been
hospitalized for having dementia-related symptoms. She testified, however, that at
the time of the January 2012 will, Florene did not exhibit any signs or symptoms
indicating that she was not oriented to time and place.
Ferringer later visited Florene in a nursing home towards the end of Florene’s
life. At that time—which was “way after” the January 2012 will—Florene was not
oriented to time and place. Ferringer agreed that she visited Florene in an assisted
living facility prior to January 2012. She believed that Florene was in assisted living
because her “house was too much for her to maintain.” She was not aware that
Florene’s being in assisted living had anything to do with her mental state. She
agreed that it would be a “red flag” if someone wanted her to prepare a will and that
person had undergone treatment for a mental illness or had been disoriented and was
under a doctor’s care.
The probate court thus was confronted with conflicting evidence concerning
Florene’s level of functioning and mental abilities at the time she executed the
January 2012 will. Medical records from several months before the will reflect that
Florene had a stroke and had been diagnosed with cerebrovascular disease and
dementia. As a result, she had some cognitive deficits and problems with her short-
term memory and with occasional hallucinations. Medical records from several
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months after the will reflect that these symptoms continued to worsen. There is no
dispute that, by the end of 2012, Florene could no longer live on her own, and she
eventually moved into a memory care unit. The medical records, although probative
of Florene’s capacity at the time she executed the will, are not conclusive. The
records themselves indicate that while Florene had dementia, a progressive
condition, it was “stable” and she was “very functional” well into 2012. The records
also reflect that while Florene experienced cognitive deficits and memory problems
in the immediate aftermath of the July 2011 stroke, and some short-term memory
difficulties persisted, her condition was improving as of September 2011.
The testimonial evidence before the probate court was also conflicting. While
Randall, Lorraine, and Louise all testified that they did not believe Florene was of
sound mind or had the capacity to execute a will in January 2012, David and
Ferringer testified to the contrary. Ferringer, a witness not interested in Florene’s
estate, provided direct evidence concerning Florene’s behavior at the time she
executed the January 2012 will. Florene approached Ferringer about revising her
will, and she and Ferringer spoke “at length” about why Florene wanted to make the
changes and expressly disinherit Randall and John. Although Ferringer was unaware
of Florene’s dementia diagnosis, she testified that Florene did not exhibit any signs
or symptoms of being disoriented. Florene was able to explain why she wanted the
19
changes to her will, and these changes appeared to Ferringer to be rational in light
of the circumstances that Florene described.
When considering all of the evidence in a neutral light, we cannot conclude
that the probate court’s finding that Florene had testamentary capacity on the date
she executed the January 2012 will was against the great weight and preponderance
of the evidence. See In re Estate of Hemsley, 460 S.W.3d 629, 637–38 (Tex. App.—
El Paso 2014, pet. denied) (holding that legally and factually sufficient evidence
supported trial court’s finding that testator had testamentary capacity in part because
court heard direct evidence of testator’s mental condition on date he executed will
and witnesses who were present testified that testator knew he was executing his will
and indicated he had deliberately chosen particular disposition of his property);
Estate of Arrington, 365 S.W.3d at 468 (considering direct evidence of testator’s
mental condition on date will was executed from subscribing witnesses, one of
whom who had known testator for twenty years and stated that nothing about
testator’s behavior was out of ordinary); Horton, 965 S.W.2d at 86 (concluding there
was no evidence testator lacked testamentary capacity even though testator had been
diagnosed with brain cancer, took medications to control pain, and had experienced
hallucinations and disorientation at times when five witnesses testified that, on date
will was executed, testator was fully alert and in control of mental capacities).
We overrule Randall’s first and second issues.
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Undue Influence
In his third issue, Randall argues that the probate court erred in disregarding
evidence that David used undue influence to procure execution of the January 2012
will.
A. Law Governing Undue Influence
Undue influence in the procurement of a will is a ground for contesting a will
that is separate and distinct from lack of testamentary capacity. Estate of Danford,
550 S.W.3d at 281. “[W]hile testamentary incapacity implies the want of intelligent
mental power, undue influence implies the existence of a testamentary capacity
subjected to and controlled by a dominant influence or power.” Id. (quoting
Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963)). The party contesting the
execution of a will generally bears the burden of proving undue influence. Id. “The
contestant must prove the existence and exertion of an influence that subverted or
overpowered the testator’s mind at the time she executed the testament such that the
testator executed a will that she otherwise would not have executed but for such
influence.” Id.; see In re Estate of Scott, 601 S.W.3d 77, 89 (Tex. App.—El Paso
2020, no pet.).
Not every influence exerted by a person onto the will of another is undue. In
re Estate of Johnson, 340 S.W.3d 769, 776 (Tex. App.—San Antonio 2011, pet.
denied). An influence is not considered undue “unless the free agency of the testator
21
is destroyed and a testament is produced that expresses the will of the one exerting
the influence rather than the will of the testator.” Horton, 965 S.W.2d at 87; see
Estate of Scott, 601 S.W.3d at 89 (stating that undue influence is influence or
dominion exercised at time of execution of will that destroys free agency of testator
and substitutes desires of another). The will contestant must therefore present
competent evidence that an undue influence existed and evidence of the testator’s
state of mind at the time the will was executed “that would tend to show [her] free
agency was overcome by such influence.” Horton, 965 S.W.2d at 87.
In determining whether undue influence has been established we consider
several factors, including
whether the accused party had an opportunity to exercise the type of
influence or deception that is alleged, the circumstances surrounding
the drafting and execution of the will, and the existence of a fraudulent
motive. The court should also consider whether the will makes an
unnatural disposition of property, considering the nature and type of
relationship existing between the testator, the contestants, and the party
accused of exerting such influence. Other relevant factors are whether
the testator has been habitually subjected to the control of the accused
party, whether the testator was mentally or physically capable of
resisting the accused party, the words and acts of the testator, and the
weakness of the testator’s mind and body. As with a challenge to
testamentary capacity, the circumstances relied on to establish undue
influence must be of a reasonably satisfactory and convincing
character, and must not be equally consistent with the absence of such
influence. “This is so because a solemn testament executed under the
formalities required by law by one mentally capable of executing it
should not be set aside upon a bare suspicion of wrongdoing.”
Id. (quoting Rothermel, 369 S.W.2d at 922–23).
22
Courts cannot infer the exertion of undue influence based on opportunity
alone. Id. (quoting Rothermel, 369 S.W.2d at 923); see Estate of Scott, 601 S.W.3d
at 90 (“[T]he fact that an individual had the opportunity to influence the testator,
such as by being the testator’s caregiver, is insufficient to establish undue
influence.”); Guthrie, 934 S.W.2d at 832 (“Mere opportunity to unduly influence a
testatrix is no proof that influence has actually been exerted.”).
Undue influence may take the form of force, intimidation, duress, excessive
importunity or deception to overcome the will of the testator. Estate of Scott, 601
S.W.3d at 89 (quoting Rothermel, 369 S.W.2d at 922); Guthrie, 934 S.W.2d at 831
(“One may request, importune, or entreat another to create a favorable dispositive
instrument, but unless the importunities or entreaties are shown to be so excessive
as to subvert the will of the maker, they will not taint the validity of the instrument.”).
Undue influence can be established by direct or circumstantial evidence. Estate of
Scott, 601 S.W.3d at 89. However, the evidence must be probative of the issue “and
not merely create a surmise or suspicion that such influence existed at the time the
will was executed.” Guthrie, 934 S.W.2d at 831. Because undue influence may be
part of a “continuing scheme,” the factfinder may consider events occurring both
before and after the execution of the will. Estate of Scott, 601 S.W.3d at 90.
A will contestant may raise a presumption of undue influence by introducing
evidence that a fiduciary relationship existed between the testator and the will
23
proponent. Estate of Danford, 550 S.W.3d at 281. If the contestant’s challenge to the
will is based on a purported confidential or fiduciary relationship between the
testator and the will proponent, the contestant bears the burden to establish such a
relationship. Id. at 282; Estate of Coleman, 360 S.W.3d at 611. “A power of attorney
creates an agency relationship, which is a fiduciary relationship as a matter of law.”
Estate of Danford, 550 S.W.3d at 286 (quoting Miller v. Lucas, No. 02-13-00298-
CV, 2015 WL 2437887, at *4 (Tex. App.—Fort Worth May 21, 2015, pet. denied)
(mem. op.)).
Once the 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. Id. at 282. This
presumption is rebuttable and shifts only the burden of production; it does not shift
the ultimate burden of proof. In re Estate of Grogan, 595 S.W.3d 807, 818 (Tex.
App.—Texarkana 2020, no pet.). Once evidence contradicting the presumption has
been introduced, the presumption is extinguished, and the case proceeds as if no
presumption ever existed. Id.B. Analysis
Randall argues that David held Florene’s power of attorney and was therefore
in a fiduciary relationship with her. According to Randall, a presumption of undue
influence arose, but the probate court erroneously failed to hold David to the burden
24
of presenting evidence to show an absence of undue influence. David argues that he
did not have the burden to disprove undue influence because Florene executed the
document giving David power of attorney on the same day that she executed the
January 2012 will and therefore no fiduciary relationship existed between David and
Florene at the time the will was executed.
Randall cites the Fourteenth Court of Appeals’ decision in Estate of Danford
for the proposition that executing a durable power of attorney on the same day as a
will is evidence that a fiduciary relationship existed at the time the testator executed
the will. See 550 S.W.3d at 285–86. Estate of Danford involved an appeal from a
summary judgment order. See id. at 280. On appeal, the will proponent argued that
the contestants had failed to establish that the proponent was a fiduciary at the time
the testator executed the will because the record did not demonstrate whether the
testator signed the power of attorney before or after the will. Id. at 286 n.7.
The Fourteenth Court noted that because the case was a summary judgment,
the contestants, as the nonmovants, only needed to point out evidence that raised a
fact issue. Id. The court also noted that, in an appeal from a summary judgment
order, all “evidentiary doubts” are resolved in the nonmovants’ favor. Id. By
presenting evidence that the testator signed the power of attorney on the same day
that she signed the will, “sufficient evidence exists to allow a factfinder to reasonably
25
infer that [the testator] signed the power of attorney in such temporal proximity to
the 2010 Will that a fiduciary relationship existed at the relevant time.” Id.Unlike Estate of Danford, this case is not an appeal from a summary judgment
proceeding. However, assuming without deciding that the fact that Florene signed
the power of attorney on the same day she executed the January 2012 will established
a fiduciary relationship between Florene and David, thus raising a presumption of
undue influence, we conclude that David presented evidence rebutting the
presumption and showing a lack of undue influence. See Estate of Grogan, 595
S.W.3d at 818 (stating that presumption of undue influence that arises when
contestant presents evidence of fiduciary relationship is rebuttable presumption);
Estate of Danford, 550 S.W.3d at 282 (stating that once contestant presents evidence
of fiduciary relationship, presumption of undue influence arises, and proponent bears
burden to produce evidence showing absence of undue influence).
Specifically, David presented both his testimony and Ferringer’s testimony
that Florene was the one who contacted Ferringer about revising her will in January
2012. Ferringer testified that Florene called her and discussed the changes that she
wanted made to her will. She also testified that Florene told her that she did not
“want any of her family to be involved with her decisions on what she was doing
with her estate.” The record contains no evidence that David requested that Florene
26
change her will, or that he was otherwise involved in the drafting and preparation of
the January 2012 will.
Ferringer’s testimony is evidence rebutting any presumption of undue
influence. This evidence therefore extinguishes the presumption of undue influence
arising out of any fiduciary relationship existing between Florene and David. See
Estate of Grogan, 595 S.W.3d at 818. We conclude that Randall, as the will
contestant, retained the ultimate burden of proof to demonstrate undue influence.
See id. (noting that presumption of undue influence arising from existence of
fiduciary relationship is rebuttable, presumption is extinguished once evidence
contradicting presumption is offered, and presumption shifts only burden of
production and not ultimate burden of proof); Estate of Danford, 550 S.W.3d at 281(stating that, generally, will contestant bears burden of proving undue influence).
Randall further argues that the probate court, in admitting the January 2012
will to probate, disregarded evidence of undue influence. He points out that the
January 2012 will, which left Florene’s estate in its entirety to David, was contrary
to every other will Florene had executed in the past that provided for all three of her
sons. He argues that the disposition of the estate in the January 2012 will is unnatural,
pointing to Lorraine’s testimony that Florene would not have disinherited Randall
and John in favor of David alone absent undue influence on David’s part. He further
27
argues that the will was executed “after [Florene] came exclusively under [David’s]
control” and during a time in which Florene was unable to care for herself.
The record before the probate court contained conflicting evidence concerning
Florene’s living arrangements at the time she executed the January 2012 will. David
testified that she moved to Horizon Bay, an assisted living facility, in November
2011. Documentary evidence reflected that Florene moved to Horizon Bay in
November 2012. Ferringer testified that she visited Florene in an assisted living
facility before execution of the January 2012 will. She also testified that, on the date
Florene executed the will, she picked Florene up at Florene’s request, and drove her
to the office where Florene executed the will. Ferringer did not state whether she
picked Florene up from the assisted living facility or the Pflugerville property.
Lorraine testified that she visited Florene at the Pflugerville property during
the latter half of 2011, and she also visited Florene at least once in an assisted living
facility, but Lorraine did not know when she made that move.4 Randall testified that
Florene was living at the Pflugerville property in January 2012 with David’s son and
his girlfriend, but not David, and that he continued to visit her at this house
occasionally in 2012. Although the record contains evidence that David assumed
4
Randall and Lorraine testified that they eventually lost track of Florene’s
whereabouts because David moved her from facility to facility and did not inform
them of where Florene was. Neither Randall nor Lorraine provided a time frame for
when this occurred.
28
primary responsibilities for Florene’s care in late 2011, there is no evidence that
Florene was living with David at the time she executed the January 2012 will.
There is also conflicting evidence in the record concerning the level of care
that Florene required at this time. Randall presented evidence that due to her physical
limitations and the cognitive deficits as a result of the stroke and the dementia
diagnosis, Florene required 24-hour care and needed assistance to perform daily
tasks such as feeding, dressing, and bathing herself. David disagreed that Florene
required such care, testifying that, by November 2011, four months after her stroke,
her condition had improved and she was more active. Florene did not go straight into
a nursing home, but instead moved into an assisted living facility, where she had her
own apartment and where she was mostly able to care for herself. It is undisputed
that Florene had medical problems and needed at least some assistance.
Although this evidence is relevant to whether Florene had the physical or
mental ability to resist influence upon her, this evidence does not establish that her
will was subverted or overpowered at the time she executed the January 2012 will.
See Cotten v. Cotten, 169 S.W.3d 824, 827 (Tex. App.—Dallas 2005, pet. denied)
(stating that evidence of “age and the common maladies of age may be considered
as establishing the testator’s physical incapacity to resist or the susceptibility of her
mind to an influence exerted,” but noting that exertion of undue influence “cannot
be inferred by opportunity alone” and evidence must exist that influence was present
29
and “exerted with respect to the making of the testament itself”); see also Rothermel,
369 S.W.2d at 923 (stating that “weakness of mind and body, whether produced by
infirmities of age or by disease or otherwise” is material to whether testator’s will
was subverted or overpowered); Estate of Grogan, 595 S.W.3d at 819 (“[E]vidence
showing that [the testator] was old and suffered the common maladies of age
demonstrates only opportunity to exert influence, not the actual influence of his mind
by [the will proponent] at the time he executed the 2010 will.”); Guthrie, 934 S.W.2d
at 832 (“A testatrix’s weakened physical and mental condition is only indicative of
her susceptibility to influence; it is no evidence that such influence exists in fact.”).
Randall argues that the January 2012 will contained a disposition of Florene’s
estate—leaving her entire estate to David and expressly disinheriting Randall and
John—that was unnatural, which is indicative of undue influence. He points out that
all of Florene’s prior wills had included provisions for all of her children, several of
her wills had included numerous specific bequests to various family members, and
two of her wills specifically did not include David as a residuary beneficiary because
he would obtain full ownership of the Pflugerville property through right of
survivorship upon Florene’s death. Lorraine also testified that, absent undue
influence, Florene would not have disinherited John and Randall in favor of David.
See Rothermel, 369 S.W.2d at 923 (considering whether testament contains
unnatural disposition of property).
30
Ferringer, however, testified that she had a conversation with Florene
concerning why she wanted the specific changes made in the January 2012 will and
Florene explained her reasoning. Florene told Ferringer that the majority of the
specific bequests were no longer necessary because those items had already been
given to the intended beneficiaries or those items had disappeared. Florene also told
Ferringer that she had concerns that money was disappearing from her bank account
and that she had had an episode with Randall during which he had apparently wanted
to have her arrested. Ferringer testified that Florene’s requests were rational and
were consistent with things Florene had told her in past conversations.
The fact that Florene chose to exclude two of her children from the January
2012 will while providing for her other child “is not in and of itself evidence of
undue influence.” See In re Estate of Kam, 484 S.W.3d 642, 653 (Tex. App.—El
Paso 2016, pet. denied) (quoting In re Estate of Sidransky, 420 S.W.3d 90, 99 (Tex.
App.—El Paso 2012, pet. denied)); see also Rothermel, 369 S.W.2d at 923–24
(noting that situation in which testator prefers one close relative over another “is
frequently present in cases involving the issue of undue influence, and it is only
where all reasonable explanation in affection for the devise is lacking that the trier
of facts may take this circumstance as a badge of disorder or lapsed mentality or of
its subjugation”). A testator who is of sound mind “has the right to dispose of his or
her property in the manner he or she wishes.” Estate of Kam, 484 S.W.3d at 653
31
(quoting In re Estate of Sidransky, 420 S.W.3d at 99). Moreover, “[t]his principle
holds regardless of whether a testator of sound mind’s perceptions about the
disinherited heir’s actions or motivations at the time the testator signs the
disinheriting instrument are true or not.” Id.
At most, Randall presented evidence that due to Florene’s mental and physical
condition, David, as the person primarily responsible for Florene’s care, had the
opportunity to exercise undue influence over Florene. Mere opportunity to exercise
undue influence is not enough; there must be evidence that that influence was
actually exerted upon the testator with respect to the testamentary document in
question. See Rothermel, 369 S.W.2d at 923; Estate of Scott, 601 S.W.3d at 90
(“[T]he fact that an individual had the opportunity to influence the testator, such as
by being the testator’s caregiver, is insufficient to establish undue influence.”);
Estate of Grogan, 595 S.W.3d at 819 (stating that evidence that will proponent cared
for testator, lived with him, took his messages, and handled financial matters at his
direction “is no evidence of the existence and exertion of undue influence because
such contacts are ‘equally consistent with the theory of innocence as . . . with the
theory of wrongdoing’”) (quoting In re Estate of Fisher, No. 06-14-00029-CV, 2014
WL 5465869, at *7 (Tex. App.—Texarkana Oct. 29, 2014, no pet.) (mem. op.));
Guthrie, 934 S.W.2d at 832 (“Mere opportunity to unduly influence a testatrix is no
proof that influence has actually been exerted.”).
32
The record contains no evidence—beyond speculation on the part of Randall,
Lorraine, and Louise—that David actually exercised undue influence over Florene
in order to procure execution of the January 2012 will. See Guthrie, 934 S.W.2d at
831 (stating that it is not sufficient for evidence to “merely create a surmise or
suspicion that such [undue] influence existed at the time the will was executed”).
There is no evidence in the record that David ever requested that Florene change her
will from the April 2011 will—which included specific bequests for David but did
not leave any portion of the residuary estate to him due to his obtaining full
ownership of the Pflugerville property—to the January 2012 will, which left the
entirety of Florene’s estate to David. See Estate of Scott, 601 S.W.3d at 90 (“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.”) (quoting Estate of Kam, 484 S.W.3d at 652); Guthrie, 934
S.W.2d at 831 (“One may request, importune, or entreat another to create a favorable
dispositive instrument, but unless the importunities or entreaties are shown to be so
excessive as to subvert the will of the maker, they will not taint the validity of the
instrument.”).
Furthermore, there is no evidence that David played any role in Florene’s
decision to change her will or in preparation of the January 2012 will. See Rothermel,
369 S.W.2d at 923 (considering circumstances surrounding drafting and execution
33
of testament). As stated above, both David and Ferringer testified that Florene was
the one who contacted Ferringer about changing her will. David was not present at
the time or at the time of the new will’s execution.
Considering all the evidence in a neutral light, we conclude that the probate
court’s implied finding that no undue influence occurred in connection with
execution of the January 2012 will was not against the great weight and
preponderance of the evidence. See, e.g., Estate of Grogan, 595 S.W.3d at 821
(concluding that evidence “produced merely a conjured suspicion of undue
influence” and was not enough to create fact issue to defeat summary judgment);
Guthrie, 934 S.W.2d at 832 (concluding that circumstantial evidence relied on by
will contestant “does no more than surmise that the executor unduly influenced the
testator and does not raise a question of fact on the issue”).
We overrule Randall’s third issue.
Conclusion
We affirm the order of the probate court admitting Florene’s January 2012
will to probate as a muniment of title.
April L. Farris
Justice
Panel consists of Justices Hightower, Countiss, and Farris.
34