In In re Estate of Kam, an elderly man executed a new will to omit any gift to one son after the man discovered that his life insurance had been altered to name his son as the sole beneficiary.  No. 08-14-00016-CV, 2016 Tex. App. LEXIS 2070 (Tex. App.—El Paso February 29, 2016, no pet. history). The son was also the executor of the man’s wife’s estate, and there were claims that he did not act appropriately in that position. After the man died, one of his daughters filed the new will for probate. The son challenged the will, claiming that it was not properly executed and that it was the product of undue influence by the daughter. After a bench trial, the trial court denied the application to probate the will and also found that the daughter did not act in good faith and rejected her request for attorney’s fees.

The court of appeals first reviewed whether the new will was properly executed. The daughter, as the party offering the will for probate, had the burden to establish that the will was: (1) in writing; (2) signed by: (A) the testator in person; or (B) another person on behalf of the testator: (i) in the testator’s presence; and (ii) under the testator’s direction; and (3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence. The will was not self-proved, so there had to be at least one witness to swear to these facts in open court. The court reviewed the testimony of the notary public and the two signing witnesses. The court held that the witnesses did not have to know the will’s contents, and that they only had to know facts to prove proper execution. The court held: “So long as at least two non-inheriting witnesses attest to the signature, and so long as at least one testifies, the non-self-proving will meets the statutory formalities.” Moreover, the court held that “The statute does not require the attesting witnesses to see the testator sign the will, so long as ‘they can attest, from direct or circumstantial facts, that the testator in fact executed the document that they are signing.’” The court reversed the trial court’s decision to the extent that it rested on the formalities of the will because the “uncontradicted testimony of two witnesses—one of whom who was totally and completely disconnected from the family conflict—conclusively establishes only one reasonable inference: that the formalities and solemnities necessary to execute the will were fulfilled.”

The court then turned to the undue influence holding. The court held that the son had the burden to establish that the new will was the product of undue influence by the daughter. The court held that to establish undue influence, a contestant must show: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. The court discussed the factors that courts consider in reviewing these three elements. The court held that there was some evidence to support the fact that the daughter exerted some influence over the man’s decision-making process and that but for her efforts the new will would likely not have come into existence. But the court held that there was no evidence of the second element. The court held that evidence that the man was in a weakened mental state was not any evidence that influence existed.  Further, the will itself was not evidence of any undue influence.    The court held that the fact that a testator chose to distribute his estate among a number of children or relatives making one bequest larger than another, or the fact that he chose to exclude certain children from a will while providing for others was not in and of itself evidence of undue influence.  Further, a person of sound mind has the right to dispose of his or her property in the manner he or she wishes. The court noted that this “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.”

Accordingly, the court held that there was no evidence to support the trial court’s finding of undue influence and rendered that the new will should have been admitted to probate.  The court finally held that as the daughter prevailed in admitting the will that she acted in good faith and deserved an award of attorney’s fees.