In In re Estate of Russey, the decedent was going through a divorce and signed a will. No. 12-18-00079-CV, 2019 Tex. App. LEXIS 1536 (Tex. App.—Tyler February 28, 2019, no pet. history). She died before the divorce was finalized. Her children took their father’s side on some issues. During this time, a sister of a friend of the decedent “swooped in,” befriended the decedent, began taking her to her medical appointments and to the hospital, and assisted with the divorce proceedings. After the decedent’s phone texted her attorney that she wanted to draft a will and name her new friend as her sole beneficiary, the decedent executed the will. The decedent passed away shortly thereafter, and the will was offered to probate. The decedent’s daughter challenged the will. Following a bench trial, the trial court entered its order denying the admission of the will to probate and granting the daughter’s application for independent administration. The friend appealed.

The court of appeals discussed the standards for undue influence. “To establish undue influence, a contestant must show the following: (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.” Id. (citing Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963)).

The court first considered whether there was sufficient evidence that the friend had a fraudulent motive in having the decedent sign the will. The friend was subject to an order of deferred adjudication for theft of $55,471.20, and she was required to pay restitution in the amount of $38,721.96. At the time the decedent signed the will, her estate was worth more than the $28,000. “This monetary need on Watson’s part amounts to some circumstantial evidence underlying her motive to seek to influence Russey to name her as her sole devisee of her will.” Id. The court also looked at evidence that the friend poisoned the decedent’s relationship with her daughter. The daughter testified that the friend “froze her out,” thereby preventing her from being able to reestablish any type of relationship with the decedent. The court considered the circumstances surrounding the drafting and execution of the will. The friend and her husband were present when the decedent executed the will in her home. The court held that the evidence was legally and factually sufficient to support the trial court’s findings that an influence existed and was exerted by the friend.

Regarding whether the influence overpowered the decedent’s mind, the court first considered the decedent’s mental and physical capacity to resist and her susceptibility to the type and extent of the influences exerted. The trial court found that, due to her health problems, the decedent was reliant on others for transportation, and that the friend befriended the decedent while she was suffering from these health problems and that the decedent became dependent on the friend during her last illness for much of her care and transportation. The decedent was lonely at a time when the friend “swooped in” to provide assistance and became deeply involved in divorce proceedings. The court concluded that this evidence was sufficient to establish that the decedent was incapable of resisting her susceptibility to the influence. The court stated:

Further, in considering Russey’s state of mind at the time she executed her will, we note that Watson and Beatty actively sought to continue Russey’s estrangement from Stevens and her grandchildren. The record also reflects that Watson and her husband made certain they were present when Russey signed the will, in which Watson was designated as her sole devisee; no family members were present or were invited to attend the signing of the will.

Id. The court concluded:

Considering the cumulative effect of the evidence related to (1) Russey’s susceptibility and dependence on Watson at the end of her life, (2) the details surrounding the signing of the March 2, 2017, will, and (3) Watson’s successfully keeping Stevens and her children away from Russey during this time, we conclude that a factfinder reasonably could determine that Watson exerted her influence and subverted and overpowered Russey’s mind at the time she signed the will.

Id.

Lastly, the court consider whether the decedent would not have executed the instrument, but for the influence. “Satisfaction of this element usually is predicated on whether the disposition of property is unnatural.” Id. The court stated:

One of the main objects of the acquisition of property by the parent is to give it to his child; and that child in turn will give it to his, in this way the debt of gratitude we owe to our parent is paid to our children. Thereby, each generation pays what it owes to the preceding one by payment to the succeeding one. This seems to be the natural law for the transmission of property. Any departure from that course, though it may not be uncommon or unusual, is unnatural.

Id. The evidence showed that the decedent never made a will until the friend reentered her life during her last illness. Because the evidence supported that the friend unduly influenced the decedent when she never had before sought to create such a document, the court concluded that the trial court reasonably could have determined that the will was unnatural in that it passed all of her property to the friend with no apparent consideration given to her children or grandchildren. The court affirmed the trial court’s finding of undue influence.