In Estate of Frye, parties filed an application to set aside an order probating a will due to an allegation of undue influence. No. 07-16-00398-CV, 2017 Tex. App. LEXIS 6992 (Tex. App.—Amarillo July 26, 2017, no pet. history). The decedent left bequests to her daughters, Judy and Patsy, in her will, but left nothing to her grandchildren, Jackson and Frye, despite her purported comments that she would do so. The grandchildren alleged that this omission was due to the efforts of Judy and Patsy to induce the decedent to change her will when her husband died. The aunts filed a no-evidence motion for summary judgment, which the trial court granted, and the grandchildren appealed.

The court of appeals held that a claim of undue influence contains several elements: 1) the existence and exertion of an influence upon the testator, 2) that subverted or overpowered his mind at the time the will was executed, and 3) so that the testator executed an instrument he would not otherwise have executed but for such influence. The court noted that influence is not “undue” unless it destroys the testator’s free agency resulting in the testament reflecting not the desires of the decedent but rather those of the person exerting the influence. “In other words, requesting or entreating another to execute a favorable dispositive instrument fails to evince undue influence; rather, the entreaties must be so excessive as to subvert the will of the maker.” Id. The court held that a will contestant must not only provide evidence that an undue influence existed, they must also offer evidence of the testatrix’s state of mind at the time the will was executed that would tend to show her free agency was overcome by such influence. The court affirmed the no-evidence summary judgment, holding that there was no evidence to support a finding of undue influence:

It is the legal truism that a person of sound mind has the right to dispose of his property as he wishes. One may be old, may be suffering from maladies, may be susceptible to influence, and may select an unordinary way to dispose of his property, but the disposition may still be emanating from her own will or choice. Simply put, the evidence of record fails to create a genuine issue of fact establishing the exertion of any influence on the part of Judy or Patsy with regard to the identity of those who were to be beneficiaries of Margaret’s estate. There is evidence that Judy and Patsy may have informed their mother of her need to change the will. So too is there evidence that Judy and or Patsy may have taken their mother to a lawyer’s office within three weeks of Eugene’s death. Frye stated in his deposition that Judy and Patsy informed Margaret that this was needed because the person designated as executor of her will (her son Gerald) had died and that they wanted to be co-executors. Yet, we are cited to nothing indicating what transpired in the lawyer’s office. Nor were we cited to evidence indicating that either Judy or Patsy was present when Margaret spoke with the lawyer or what the lawyer and Margaret discussed. It is clear that neither Judy nor Patsy were present when Margaret executed the new will.… It may be that Patsy informed Jackson, years after the will’s execution, that “we cut ya’ll out”… Yet, “we cut ya’ll out” indicates a result. It illustrates neither the presence of any communications on the matter between Judy, Patsy, and Margaret or their tenor. And though the result may have been agreeable to Judy and Patsy, there is no evidence that they asked, told, or demanded that from Margaret. At most, the evidence indicates opportunity to influence. Opportunity alone, though, is not enough to establish undue influence. Nor is it enough to create genuine issues of material fact on the matter.

Id.

The court then held that the grandchildren’s claim for tortious interference with inheritance rights failed because there was no such claim in Texas: “this court does not recognize the cause of action for tortious interference with inheritance rights… Until either the Supreme Court or the legislature recognizes it, we will not for the reasons expressed in our Kinsel opinion. Thus, the trial court did not err in granting summary judgment against them on that claim.” Id.