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.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law