in the Matter of the Estate of Buster E. Hanson ( 2015 )

Opinion filed April 30, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00113-CV
__________
IN THE MATTER OF THE
ESTATE OF BUSTER E. HANSON, DECEASED
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CV01412
MEMORANDUM OPINION
Shortly before his death, Buster E. Hanson executed a Last Will and
Testament (2011 Will) that revoked his prior will. After his death, a will contest
ensued when his daughter, Suzanna La Vonia Hanson, offered the 2011 Will for
probate. The 2011 Will left her father’s entire estate to her, whereas the prior will,
executed in 2008, had left the majority of the estate to her brother, Malcolm Hanson.
The jury found that Suzanna had unduly influenced her father to change his will and
that she had failed to offer the 2011 Will for probate in good faith and with just
cause. She argues, in four issues, that the evidence was legally and factually
insufficient to support the findings of the jury. We affirm.
I. Evidence at Trial
Buster and LaRue Hanson were married in 1958. They had four children
together, but only two adult children, Malcom and Suzanna, survived them.1 LaRue
died in February of 2011, approximately ten and one-half months before Buster, who
died on December 24, 2011, at the age of eighty-eight. Buster and LaRue’s largest
assets were the two-hundred-acre pecan farm where they resided and mineral
interests located on other property.
A. Buster’s and LaRue’s Wills
Buster and LaRue each executed three wills in the latter parts of their lives.
Each of their first wills left the other a life estate in his or her respective interest in
the farm, with the remainder left to Malcolm. Each of their second wills left the
other his or her respective interest in the farm in fee simple, but provided that
Malcolm would take the farm in fee simple after the death of the second of the two.
LaRue’s third will, which was similar to her first will, left Buster a life estate in her
interest in the farm, with a remainder left to Malcolm in fee simple.2 Buster’s final
will changed his prior wills and left his interest in the farm to Suzanna in fee simple.
Each of LaRue’s and Buster’s wills either did not address the minerals or devised
them so that eventually Malcom and Suzanna would share equally.
1
Buster also had a child from a previous marriage, Diane Hanson Parma. Buster and Parma were
not close. Her interest in all of Buster’s wills was relatively marginal, and she is not involved in this
litigation.
2
Buster was unaware Larue had executed this will until after her death. LaRue left Buster a love
letter that explained why she changed her will without telling him. The letter indicated that LaRue left
Buster only a life estate in the farm because she wanted to ensure that Buster and their kids always had a
place to live and did not want Buster to be able to sell the farm.
2
B. Buster’s Last Will
Malcolm testified he lived on the farm his entire life, worked the pecan crop
on the farm, and was closer to Buster than Suzanna was except for the eight months
before Buster’s death. Suzanna testified she was close to their father, while Malcolm
was closer to their mother. She said their father was hurt when he learned that LaRue
had changed her will and had not told him. After Buster learned of LaRue’s last
will, Buster wanted Suzanna to take him to see a lawyer. Suzanna said Buster
wanted to ask the lawyer about removing Malcolm’s name from his checking
account. At the meeting, Buster asked questions about LaRue’s will and about
potentially changing his will, though Suzanna claims the main purpose of the
meeting was to ask about the checking account. Suzanna conceded she wrote down
several things that she claimed Buster wanted to discuss with the lawyer, and she
brought those up in the first meeting.
Suzanna called the lawyer a few weeks after the meeting to ask him about
drafting her father’s will, and the lawyer informed her that he did not feel
comfortable writing another will for Buster. The lawyer testified that Suzanna had
told him that Buster needed to change his will so it would benefit her, though he
could not recall exactly what she said. The lawyer remembered no discussion about
Buster’s checking account. He also was concerned that Suzanna had undue
influence over Buster, so he asked Buster if what Suzanna had said was what he
wanted to do; Buster never gave an affirmative answer. The lawyer told Suzanna he
needed to hear directly from Buster how to draft the new will. Suzanna and Buster
never returned to this lawyer’s office, and he did not prepare a new will for Buster.3
3
The first lawyer testified that he knew the second lawyer, who had a good reputation. The first
lawyer thought his colleague would not have drafted Buster’s will if his colleague thought Buster had been
unduly influenced.
3
A short time later, Suzanna drove her father to see another lawyer. Suzanna
attended the first meeting between Buster and the second lawyer; she said she wanted
to know how to prepare her own will. But she claimed Buster and the second lawyer
were alone when the lawyer and Buster discussed the specifics of Buster’s will.
Suzanna later drove Buster to the second lawyer’s office to sign the will, but she
remained in the truck while he went inside. She said she and Buster did not talk
about the will on the drive to the second lawyer’s office. Suzanna claimed that she
never pressured her father to change his will or leave her anything and that she never
looked at the 2011 Will until after he died.
The second lawyer testified that Buster told him several times he wanted
Malcolm and Suzanna to share equally in his and LaRue’s property. He also asked
Buster several times if anyone persuaded him to change his will; Buster said no one
had. The second lawyer acknowledged that Suzanna brought Buster to the
appointment to discuss Buster’s will, but he said it was normal for a spouse or adult
child to do so. He said Suzanna was not in the room when Buster and he discussed
the specifics of the will. He said he did not believe Buster was being unduly
influenced. He conceded he was unaware of the first lawyer’s reticence to draft a
new will for Buster.
The second lawyer prepared the 2011 Will and videotaped its execution.
During the video, Buster was confused at various times and struggled to identify all
his children when asked to do so. When asked if he wanted to continue and sign the
will, he responded, “[T]he way I’m seeing it, I don’t have much choice and I better
do what I said I’d do here. So we’ll just go ahead and execute this deed, this deal.”
Suzanna testified that her father was mentally stable and of sound mind when he
signed the 2011 Will.
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 C. Buster’s Physical and Mental Condition
Dr. Jeffrey Hutchins was Buster’s primary physician from 2006 until Buster’s
death. Dr. Hutchins testified that he observed signs of dementia in Buster soon after
LaRue’s death but that, prior to November 2011, the dementia was only mild to
moderate. Buster’s medical records implicitly supported that position. A few days
before Buster died, Dr. Hutchins confirmed Buster had dementia. Dr. Hutchins also
observed signs of dementia in Buster in the video. In contrast, the second lawyer
testified he was sure, after he talked with Buster, that Buster’s mind was sound, that
he had testamentary capacity, and that his disposition in the will was rational and
planned.
Several witnesses testified about their interaction with Buster and his physical
and mental decline in the months before his death. The witnesses included Buster’s
niece, Lisa Weaver; her husband, Jeff Weaver; neighbor, Neil Morris; and good
friend, Jim Lampman. Lisa was familiar with the Hanson family; she testified that
Suzanna disappeared often and had no contact with her family or her children for
months, which worried LaRue and Buster. Lisa said that LaRue and Buster wanted
to give the farm to Malcolm because he would take care of Suzanna; LaRue and
Buster thought Suzanna would sell the farm and spend the money. Lisa disagreed
that Buster was mentally sharp in the last year of his life; she said that Buster was
not capable of making important, rational decisions in the fall of 2011. Lisa thought
Buster looked like he was under someone’s control in the video.
Jeff married Lisa and knew the Hanson family. He testified that Buster and
LaRue worried about Suzanna because of her absences and that they had talked
openly about leaving the farm to Malcolm, who would keep it in the family; they
told Jeff they wanted Malcolm to have the farm because he would tend to it. Jeff
noted that Buster had slipped a lot mentally in his last year. He noticed Buster had
5
trouble remembering things in the video. Jeff claimed that Suzanna was
manipulative and capable of influencing Buster to change his will.
Morris testified that he saw Buster most days and became closer to Buster in
the last decade of Buster’s life. Morris and Buster knew each other for more than
fifty years. He noticed Buster’s health noticeably declined in the final year of
Buster’s life; he explained one incident where Buster forgot to wear his shoes in cold
weather and another incident where Buster accidently drove his pickup truck into
something in the parking lot of the cafe. He did not believe that Buster was mentally
sharp and said that Buster should not have made important decisions by himself.4
Jim Lampman, another friend of Buster, knew him through work and was a friend
for almost forty years. He said that Buster was a sharp guy but had slowed down
considerably in the final eighteen months of his life. He did not believe that Buster
was as mentally sharp as he had been and said that Buster needed help with important
decisions. Buster briefly mentioned to Lampman that LaRue left her interest in the
farm to Malcolm, and Lampman told Buster he thought that made sense because
Buster was getting older and Malcolm took care of the farm.
Other witnesses—Tommy Gibson, Tommy Frost, Jean Stokes, and Lee
Gilder—testified that Buster was sharp and knew what he wanted to do with his will.
Gibson hunted squirrels on the farm for many years. During each hunting trip, he
visited with Buster; he camped at the farm and talked to Buster twice after Buster
signed the 2011 Will. Gibson said that Buster had mentioned that LaRue changed
her will without telling him and that Buster was going to “straighten that out . . . and
will mine to Suzie.” But Buster also told Gibson, after Buster modified his will, that
4
Morris also said that Suzanna was not around much and came back to spend time with the family
only around the time LaRue died. Morris testified that Malcolm worked hard on the farm and helped Buster
a lot.
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“I’m not certain I solved the problem . . . I think the kids will end up in court over
it.” Gibson testified that Buster, although in poor physical shape, was still mentally
sharp and knew of his surroundings.
Frost met Buster in 1939 and drank coffee with him almost daily for about
fourteen years until Buster died. He commented that Buster was mentally sharp and
knew what he was doing. When Frost and Buster were at the horse races in Ruidoso,
Buster told him that “he wrote it [the 2011 Will] like he wanted it.” Frost had no
reason to believe that anyone coerced Buster to change his will. Frost had heard
about the incident where Buster had not worn shoes on a freezing cold day and of
the incident where Buster had accidentally hit the gas pedal instead of the brake
pedal and drove his pickup into something in the parking lot of the cafe.
Stokes testified her family and Buster’s family were very close and did
everything together. According to Stokes, Buster was in good mental condition, and
there was no indication that anyone unduly influenced Buster. Buster was upset
when he learned LaRue had changed her will; he wanted to make a new will. Stokes
heard Buster say, “I want it [the property] to be split right half down the middle. I
want to be fair with both of my children.”
Gilder also was good friends with Buster and owned property across the road
from Buster’s farm. After Buster signed his will at the second lawyer’s office, he
and Suzanna headed straight for Ruidoso, to watch the horse races with Gilder in his
box seats at the track. Gilder said that Buster was mentally sharp at the track and
that Buster told him he had recently executed a new will, though Buster mentioned
no specifics. Gilder also knew Suzanna, but he said, “I don’t know [if] you can say
I know her well.” He admitted that he had loaned her $3,000 to probate the will and
that, in 2008, he had offered to buy Buster’s farm for $750,000, which was
7
substantially less than its value at the time of Buster’s death. Buster had declined
the offer, and Gilder claimed he was no longer interested in the property.
D. Will Contest
Suzanna kept Buster’s 2011 Will from everyone and offered it for probate
upon his death. Under the 2011 Will, Suzanna inherited her father’s interest in the
farm in fee simple, the money in his bank accounts, all his personal property,
vehicles, farm equipment, and one half of his mineral interests, with the other half
of the mineral interests going to Malcolm. She testified that she did not make her
dad sign the 2011 Will or ask him to leave her anything. Suzanna planned to sell the
farm; she admitted that Gilder had made an offer on the farm to Buster and that
Gilder had loaned her money to probate the 2011 Will. She denied Gilder had asked
about purchasing the farm when he made the loan.
Malcolm brought a will contest and alleged that Buster executed the 2011 Will
without testamentary capacity and as a result of undue influence. Malcolm asserted
Suzanna had unduly influenced their father to change his will. Malcolm said that
neither Suzanna nor his father ever mentioned to him anything about seeing an
attorney to change Buster’s will. One day, in the summer of 2011, Malcolm walked
into the farmhouse and saw Suzanna yelling at their father and waving LaRue’s will
at him, and when Malcolm came into the room, Suzanna left the room. He also
overheard Suzanna tell someone on the telephone that “everything out here is mine”
in reference to their parents’ and Malcolm’s property. Malcolm heard Suzanna tell
Buster that Malcolm was staying out all night long and drinking; things Malcolm
claimed were untrue and fabricated by Suzanna.
Malcolm explained that his mother left him the farm in fee simple and left his
father only a life estate because she was afraid that Suzanna or someone else would
take advantage of Buster’s old age and persuade him to sell the farm. Unlike
8
Suzanna, Malcolm had no plans to sell the farm; he wanted to keep it in the family.
Following Buster’s death, Malcolm paid all of the farm’s bills, Buster’s income tax,
and interest due on $27,000 worth of Buster’s outstanding notes; he also tended the
farm’s pecan crop.5
Suzanna asserted that her mother was a controlling person and that her mother
had threatened her father with divorce if he did not accede to her wishes. According
to Suzanna, her mother had unduly influenced her father into signing his prior will,
the one offered for probate by Malcolm. Suzanna denied she told their father that
Malcolm drank too much. She said Malcolm’s drinking was known in the
community. The jury found that Buster had testamentary capacity when he executed
the 2011 Will but that Suzanna had unduly influenced Buster to execute the 2011
Will; the jury also found that Suzanna had not offered the 2011 Will in good faith
and with just cause. The trial court admitted for probate the prior will offered by
Malcolm. Suzanna appealed.
II. Issues Presented
Suzanna asserts four issues on appeal. In her first and third issues, she argues
that the evidence legally and factually could not support the finding that she unduly
influenced Buster to execute the 2011 Will. Suzanna argues in her second and fourth
issues that the evidence was legally and factually insufficient to support the finding
that she failed to offer the 2011 Will in good faith and with just cause.
III. Standard of Review
When we conduct a legal sufficiency review, we review the evidence in a light
that supports the disputed finding and disregard all evidence and inferences to the
contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). We “consider all of
5
Suzanna made one $50 contribution toward expenses.
9
the evidence in the light most favorable to the prevailing party, indulging every
reasonable inference in that party’s favor.” In re Estate of Rhea, 257 S.W.3d 787,
790 (Tex. App.—Fort Worth 2008, no pet.) (citing Associated Indem. Corp. v. CAT
Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998)). We may sustain a legal
sufficiency challenge only when (1) the record discloses a complete absence of a
vital fact, (2) the court is barred by rules of law or evidence from giving weight to
the only evidence offered to prove a vital fact, (3) the only evidence offered to prove
a vital fact is no more than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802,
810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” and “Insufficient
Evidence” Points of Error, 38 TEX. L. REV. 361, 362–63 (1960)).
For a factual sufficiency review, we examine all the evidence in the record,
both for and against the lower court’s findings. Ortiz v. Jones, 917 S.W.2d 770, 772
(Tex. 1996). We consider and weigh all such evidence in a neutral light. Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). If the evidence
would enable reasonable minds to differ in their conclusions, we do not substitute
our judgment, so long as the evidence falls within a zone of reasonable disagreement.
City of Keller, 168 S.W.3d at 822. In considering and weighing all of the evidence,
we will set aside the judgment only if it is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986).
IV. Analysis
To establish a claim of undue influence, a contestant must prove the
following: (1) the existence and exertion of an influence; (2) the effective operation
of such influence so as to subvert or overpower the person’s mind when executing
the document; and (3) the person would not have executed the document but for the
10
influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963); Cobb v. Justice,
954 S.W.2d 162, 165 (Tex. App.—Waco 1997, pet. denied). The contestant must
prove the elements of undue influence by a preponderance of the evidence. Cobb,
954 S.W.2d at 165; Evans v. May, 923 S.W.2d 712, 715 (Tex. App.—Houston [1st
Dist.] 1996, writ denied).
A finding that an executor procured a will by undue influence does not
preclude a finding that the executor, nevertheless, offered the will in good faith and
with just cause. Harkins v. Crews, 907 S.W.2d 51, 62 (Tex. App.—San Antonio
1995, writ denied) (citing Huff v. Huff, 124 S.W.2d 327, 330 (Tex. 1939)). Good
faith is a question of fact, to be determined under all the circumstances of the case.
Id. Good faith and just cause is a separate jury question, and it is not determined
automatically by a finding of, or no finding of, undue influence. See id. We will
address the issues on undue influence followed by the issues on good faith and just
cause.
A. Issues One and Three: Undue Influence
The rules guiding determination of undue influence apply substantially alike
to wills, deeds, and other instruments. Rankin v. Rankin, 151 S.W. 527, 529 (Tex.
1912); Wils v. Robinson, 934 S.W.2d 774, 780 (Tex. App.—Houston [14th Dist.]
1996), writ granted w.r.m., 938 S.W.2d 717 (Tex. 1997); DeGrassi v. DeGrassi, 533
S.W.2d 81, 85 (Tex. Civ. App.—Amarillo 1976, writ ref’d n.r.e.); Bradshaw v.
Naumann, 528 S.W.2d 869, 871 (Tex. Civ. App.—Austin 1975, writ dism’d). The
party claiming undue influence must establish that the instrument in question is the
product of undue influence and that the influence existed when the instrument was
executed. Rothermel, 369 S.W.2d at 922.
Undue influence may be shown by direct or circumstantial evidence but will
usually be established by the latter. Estate of Davis v. Cook, 9 S.W.3d 288, 293
11
(Tex. App.—San Antonio 1999, no pet.). When circumstantial evidence is relied
upon, 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 also that it controlled the willpower of the testator at the
precise time the will was executed. Id. “Circumstances relied on as establishing the
elements of undue influence must be of a reasonably satisfactory and convincing
character, and they must not be equally consistent with the absence of the exercise
of such influence.” Id.
Factors to be considered in determining the existence of undue influence
include:
(1) the nature and type of relationship existing between the
testator, the contestants[,] and the party accused of exerting such
influence;
(2) the opportunities existing for the exertion of the type or
deception possessed or employed;
(3) the circumstances surrounding the drafting and execution of
the testament;
(4) the existence of a fraudulent motive;
(5) whether there has been a habitual subjection of the testator to
the control of another;
(6) the state of the testator’s mind at the time of the execution of
the testament;
(7) 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;
(8) words and acts of the testator;
12
(9) weakness of mind and body of the testator, whether produced
by infirmities of age or by disease or otherwise; [and]
(10) whether the testament executed is unnatural in its terms of
disposition of property.
In re Estate of Graham, 69 S.W.3d 598, 609–10 (Tex. App.—Corpus Christi 2001,
no pet.).
1. Legal Sufficiency
Suzanna asserts there is no evidence to support the verdict of the jury that she
unduly influenced her father. If more than a scintilla of evidence supports the
challenged finding, her no-evidence challenge must fail. See Wal-Mart Stores,
Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Gen. Motors Corp. v. Sanchez,
997 S.W.2d 584, 588 (Tex. 1999).
a. Factors One, Eight, and Ten
Factors one, eight, and ten involve the nature and relationship of the testator
and the contestants, the testator’s words and actions, and whether the testator’s
disposition was unnatural. See Graham, 69 S.W.3d at 609–10. Buster and LaRue
married and had children together, but only two, Malcolm and Suzanna, survived
them. The evidence showed that Suzanna lived away from her parents for a long
period of time and that she would disappear for long stretches without contacting her
family; Buster and LaRue worried about her. Buster and LaRue wanted the farm to
stay in the family so Suzanna would have a place to go whenever she needed it.
Buster and LaRue worried that Suzanna, if given the chance, would sell her interest
in the farm and waste the money.
LaRue died in February 2011, and Buster died ten and one-half months later
at the age of eighty-eight. Buster and LaRue’s largest asset was their two-hundred-
acre pecan farm. They also had mineral interests located on other property.
13
Malcolm said LaRue left him her interest in the farm in fee simple and left his father
only a life estate because she was afraid that Suzanna or someone else would take
advantage of Buster’s old age and persuade him to sell the farm too easily. All three
of LaRue’s wills and the first two of Buster’s wills would have accomplished their
goal to give the farm to Malcolm and keep it in the family. Buster’s final will
departed from his previous wills with respect to how he devised his property.
b. Factors Two, Six, Seven, and Nine
These four factors focus on the testator’s state of mind and his physical and
mental condition, his ability to resist the influence of Suzanna, and the opportunities
Suzanna had for influence. See Graham, 69 S.W.3d at 609–10. Buster was eighty-
eight years old, and his mental and physical condition declined greatly in 2011. His
advanced age contributed to his weakness of mind and body. Dr. Hutchins observed
signs of mild to moderate dementia in Buster. Dr. Hutchins said that Buster
exhibited signs of dementia in the video.
Suzanna moved back home, for the first time in thirty years, shortly before
LaRue’s death, and she lived with LaRue and Buster until their deaths; afterward,
she continued to live in the home. Malcolm had lived in the residence his whole life,
but he moved into a trailer when Suzanna moved back home. One day, Malcolm
walked in and saw Suzanna yelling at Buster, waving LaRue’s will at him. He also
overheard Suzanna say to someone, while she was on the telephone, that “everything
out here [the farm] is mine, they’ll all be mine [Buster’s property], and if he
[Malcolm] keeps messing with me, I’ll have his [Malcolm’s] stuff, too.”
Lisa said that LaRue and Buster knew that Malcolm would take care of
Suzanna and that LaRue and Buster thought Suzanna would sell the farm and waste
the proceeds. Lisa said that Buster was not capable of making important, rational
decisions. Both Lisa and Jeff watched the video and noted that Buster was not
14
mentally sharp, like he used to be, and Lisa thought someone was controlling him.
Jeff testified that he thought Suzanna was capable of influencing Buster to modify
his will.
c. Factors Three, Four, and Five
These factors look at the circumstances surrounding the drafting and
execution of the testament, the existence of a fraudulent motive, and whether the
testator had been habitually under the control of another. See Graham, 69 S.W.3d
at 609–10. After LaRue’s death, Malcolm caught Suzanna yelling at Buster about
LaRue’s will. The first lawyer testified that Suzanna told him how to write Buster’s
will; when he asked Buster if those were his wishes, Buster was reluctant and never
gave an affirmative answer. The lawyer wanted to talk to Buster about Buster’s
intentions, but Suzanna and Buster never returned to his office. When the lawyer
told her he would not draft another will for Buster, Suzanna drove Buster to see
another lawyer. Later, Buster signed the 2011 Will drafted by the second lawyer.
Suzanna kept Buster’s 2011 Will from everyone and offered it for probate
upon his death. Suzanna planned to sell the farm. Suzanna wanted the farm sold;
Malcolm did not. Malcolm also overheard Suzanna tell someone that “everything
out here is mine.” Suzanna conceded that Gilder had made an offer on the farm to
Buster, which Buster had rejected, and that Gilder had loaned Suzanna money to
probate the 2011 Will. In reviewing all of the evidence we have previously outlined
and the ten factors for analyzing whether there was undue influence, we hold that
there was some evidence that Suzanna unduly influenced Buster.
2. Factual Sufficiency
Suzanna also argues that the finding of the jury that she unduly influenced her
father to change his will was so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176. “Jurors are the sole
15
judges of the credibility of the witnesses and the weight to give their testimony.
They may choose to believe one witness and disbelieve another.” City of Keller,
168 S.W.3d at 819 (footnote omitted).
Gibson, Frost, Stokes, and Gilder all testified that Buster was sharp. Gibson
testified that Buster was still mentally sharp and knew of his surroundings. Gibson
testified that Buster mentioned to him that LaRue changed her will without telling
him and that Buster said he was going to “straighten that out . . . and will mine to
Suzie.” Frost commented that Buster was mentally sharp and knew what he was
doing. Frost said Buster told him, when speaking of his will, that “he wrote it like
he wanted it.” Frost had no reason to believe that anyone coerced Buster to change
his will. Stokes said that Buster was in good mental condition and that Buster said
that he wanted the property “to be split right half down the middle. I want to be fair
with both of my children.” Gilder said that Buster was mentally sharp and that, when
they were in Ruidoso, Buster told him he had recently executed a new will.
Other witnesses testified Buster was susceptible to undue influence. Lisa
watched the video and testified that Buster was not mentally sharp and that she
thought he was being controlled. Jeff also noted that Buster had slipped a lot
mentally in his last year. Jeff watched the video and said Buster could not recall
things he normally remembered. Morris said Buster should not have made important
decisions by himself. Lampman said that Buster was a sharp guy but that he had
slowed down considerably and needed help making important decisions.
Several witnesses said Suzanna exerted undue influence over Buster because
she had recently moved back home just before LaRue’s death and lived with Buster,
in his home, until his death. Suzanna drove Buster to the first lawyer’s office to get
a new will, but that lawyer was concerned that Suzanna had undue influence over
Buster; Suzanna then took Buster to another lawyer’s office, where the second
16
lawyer drafted and Buster signed the 2011 Will. Suzanna testified that Buster
wanted her to sell her interest in the farm. But Jeff and Lisa testified that Buster and
LaRue decided to let Malcolm have the farm. Suzanna claimed she never pressured
her father to change his will, but she kept it secret until he died.
The second lawyer did not believe that Buster was being unduly influenced.
He conceded he was unaware of the first lawyer’s reluctance to draft a new will for
Buster. At the will signing, Buster said, “I don’t have much choice and I better do
what I said I’d do here.” The jury could have concluded that Buster wanted to leave
his interest in the farm to Malcolm because he wanted to keep it in the family but
that Suzanna’s undue influence overwhelmed his intent. The jury was the arbiter of
the disputed facts. We hold that there is legally and factually sufficient evidence to
support the jury’s finding that Suzanna unduly influenced Buster into changing his
will to benefit her.
B. Issues Two and Four: Good Faith and Just Cause
Suzanna asserts in her second and fourth issues that there was legally and
factually insufficient evidence for the jury to find that she failed to offer the 2011
Will in good faith and with just cause. Former Section 243 of the Texas Probate
Code6 allows for the payment of a designated executor’s or beneficiary’s legal
expenses when that person defends or prosecutes a will in good faith and with just
cause, whether or not that person is successful in doing so. See former TEX. PROB.
CODE § 243, now TEX. EST. CODE ANN. § 352.052 (West 2014).
6
Section 243 of the Texas Probate Code, which was in effect when this case was filed, was repealed
(along with the entire Probate Code) by the legislature, and Section 243 was recodified as Section 352.052
of the Texas Estates Code without any substantive modification. See Act of May 26, 2009, 81st Leg., R.S.,
ch. 680, §§ 1, 10–12, 2009 TEX. GEN. LAWS 1512, 1650, 1731–32 (effective Jan. 1, 2014) (current version
at TEX. EST. CODE ANN. § 352.052 (West 2014)).
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The jury charge instructed that “‘good faith’ means an action which is
prompted by honesty of intention, or a reasonable belief that the action was probably
correct.” The jury charge further instructed that “with just cause” means that the
action of Suzanna, when she offered the document, must have been based on
reasonable grounds and that there must have been a fair and honest cause for doing
so. A finding of undue influence does not preclude a finding that the will was offered
in good faith and with just cause. Harkins, 907 S.W.2d at 62. Good faith is a
question of fact to be determined from all the circumstances of the case. Id.
Determining whether Suzanna filed her application to probate the 2011 Will
in good faith and with just cause was a question for the jury to resolve. See Ray v.
McFarland, 97 S.W.3d 728, 730 (Tex. App.—Fort Worth 2003, no pet.); Collins v.
Smith, 53 S.W.3d 832, 843 (Tex. App.—Houston [1st Dist.] 2001, no pet.). In
Collins, the jury found that the contestants did not act in good faith or with just cause
when they contested a 1998 will, which they claimed was not prepared according to
the usual standards; the contestants filed for probate a will from 1994. Collins, 53
S.W.3d at 842–43. The jury heard conflicting testimony about the testator’s
depression and its effect on his susceptibility to the influence of others, but the jury
also heard testimony that he was of sound mind when he executed the will and that
the will reflected his wish that his grandchildren inherit his property. Id. The Collins
court held that it was the jury’s province to resolve conflicting testimony, and it
affirmed the finding of the jury that the contestants had not acted in good faith or
with just cause. Id.
In Ray, the appellate court reversed the judgment non obstante verdicto of the
trial court because there was some evidence to support the jury’s finding that the
contestant had not acted in good faith and with just cause. Ray, 97 S.W.3d at 730.
The contestant in Ray said to her daughter, the sole beneficiary, when she learned
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she was excluded as an heir from the decedent’s 1991 will, “Now, you listen to me,
sister, and you listen to me good; I’m not through with you yet”; the contestant then
hired an attorney, contested the 1991 will, and filed a prior will from 1989 that was
written by the contestant. Id. But the evidence showed the contestant had taken
money and other property from the decedent, which is why the 1991 will excluded
the contestant as an heir. Id.
In the case before us, the first lawyer testified that, during his meeting with
Suzanna and Buster, Suzanna told him to write a will for Buster that would benefit
her and cut out Malcolm. Suzanna had kept the 2011 Will hidden from everyone.
Malcolm overheard Suzanna tell another that “everything out here is mine, they’ll
all be mine, and if he keeps messing with me I’ll have his stuff, too” in reference to
their parents’ and Malcolm’s property. Dr. Hutchins testified that Buster suffered
from mild to moderate dementia and had signs of dementia in the video. This
evidence is some evidence that Suzanna failed to offer the 2011 Will in good faith
and with just cause. Furthermore, the jury chose to believe Dr. Hutchins, the first
lawyer, Malcolm, and others and, apparently, chose not to believe conflicting
testimony from Suzanna and others. The jury weighed the conflicting evidence and
resolved the issue of whether Suzanna acted in good faith and with just cause against
her. See Ray, 97 S.W.3d at 730; Collins, 53 S.W.3d at 842–43. In light of the
evidence we have previously outlined, we cannot say that the finding of the jury that
Suzanna failed to offer the 2011 Will in good faith and with just cause was so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.
V. Conclusion
We have reviewed the record and hold that the evidence was legally and
factually sufficient to show that Suzanna exerted undue influence over her father that
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subverted or overpowered his mind when he executed the 2011 Will and that her
father would not have executed the 2011 Will but for her undue influence. We also
hold that the evidence was legally and factually sufficient to show that Suzanna
failed to offer the 2011 Will for probate in good faith and with just cause. We
overrule all of Suzanna’s issues.
VI. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
April 30, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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