In Neal v. Neal, the decedent died leaving three sons. No. 01-19-00427-CV, 2021 Tex. App. LEXIS 2051 (Tex. App.—Houston [1st Dist.] March 18, 2021, no pet. history). She had several wills in the last five years of her life, but her final will left all of her estate to one son. The other sons alleged that the last will was invalid due to mental incompetence and due to undue influence. The trial court found against the contestants and admitted the will to probate, and the contestants appealed.

The court of appeals first reviewed the law regarding mental competence to execute a will:

A testator has testamentary capacity when, at the time of the execution of the will, she possesses sufficient mental ability to (1) understand the business in which she was engaged, the effect of making the will, and the general nature and extent of her property; (2) know her next of kin and the natural objects of her bounty; and (3) have sufficient memory to assimilate the elements of executing a will, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them. The key to this inquiry is whether the testator had testamentary capacity on the day the will was executed. This may be inferred from the testimony of lay and expert witnesses concerning their observations of the testator’s conduct prior or subsequent to the execution of the will. Evidence that the testator was incompetent at other times can be used to establish a lack of testamentary capacity on the day the will was executed if the evidence “demonstrates that the condition persists and ‘has some probability of being the same condition which obtained at the time of the will’s making.’”

Id. The court reviewed the evidence and noted that the decedent had been diagnosed with dementia: “These records demonstrate that Florene had a stroke in July 2011, and she was subsequently diagnosed with cerebrovascular disease and dementia. The records, from both her primary care physician and a home healthcare agency, reflect that Florene had cognitive deficits, including hallucinations, confusion, and problems with her short-term memory.” Id. However, the records also indicated that the decedent had some improvement: “The records also reflect that Florene’s condition improved throughout August and September 2011, that she practiced journaling and used calendar aids to help with her short-term memory problems, and that, by September 2011, she was no longer considered ‘homebound.’ A notation on a record from September 23, 2011, states, ‘vascular dementia stable at this time.’” Id. The new will was executed in January of 2012. Medical records from mid-2012 indicated that the decedent’s condition worsened and that she was having hallucinations. Multiple witnesses testified that during this entire time period that the decedent did not have mental competence to understand the complexities of a will. However, the applicant son testified that she did have competence in January of 2012. He admitted that she had mental competence issues before that time, but that she had improved and was making her own decisions at the time of the will. The attorney that drafted the will also testified that the decedent had capacity. The court of appeals held that the evidence was sufficiently contradictory such that it could not overrule the trial court’s decision to admit the will.

The court of appeals then discussed the undue influence ground. The court described the law thusly:

The party contesting the execution of a will generally bears the burden of proving undue influence. “The contestant must prove the existence and exertion of an influence that subverted or overpowered the testator’s mind at the time she executed the testament such that the testator executed a will that she otherwise would not have executed but for such influence.” Not every influence exerted by a person onto the will of another is undue. An influence is not considered undue “unless the free agency of the testator is destroyed and a testament is produced that expresses the will of the one exerting the influence rather than the will of the testator.”

Id. However, the court noted that a fiduciary relationship between the applicant and the decedent created a presumption of undue influence:

A will contestant may raise a presumption of undue influence by introducing evidence that a fiduciary relationship existed between the testator and the will proponent. If the contestant’s challenge to the will is based on a purported confidential or fiduciary relationship between the testator and the will proponent, the contestant bears the burden to establish such a relationship. “A power of attorney creates an agency relationship, which is a fiduciary relationship as a matter of law.” Once the contestant presents evidence of a fiduciary relationship, a presumption of undue influence arises and the will proponent bears the burden to produce evidence showing an absence of undue influence. This presumption is rebuttable and shifts only the burden of production; it does not shift the ultimate burden of proof. Once evidence contradicting the presumption has been introduced, the presumption is extinguished, and the case proceeds as if no presumption ever existed.


The court noted that the decedent executed a power of attorney document at the same time as the new will. The court questioned whether this simultaneous execution would be sufficient to create a presumption of undue influence. In any event, the court held that the applicant had sufficient evidence of no undue influence so as to shift the burden on that issue back to the contestants:

David presented both his testimony and Ferringer’s testimony that Florene was the one who contacted Ferringer about revising her will in January 2012. Ferringer testified that Florene called her and discussed the changes that she wanted made to her will. She also testified that Florene told her that she did not “want any of her family to be involved with her decisions on what she was doing with her estate.” The record contains no evidence that David requested that Florene change her will, or that he was otherwise involved in the drafting and preparation of the January 2012 will. Ferringer’s testimony is evidence rebutting any presumption of undue influence. This evidence therefore extinguishes the presumption of undue influence arising out of any fiduciary relationship existing between Florene and David. We conclude that Randall, as the will contestant, retained the ultimate burden of proof to demonstrate undue influence.

Id. The court then concluded that the contestants did not meet their burden to prove that the decedent executed a will that she otherwise would not have executed but for the undue influence of the applicant. The court noted that evidence that the decedent was not in good physical or mental health and that she changed her will to cut out two of her three children was not sufficient to prove undue influence. The court held:

At most, Randall presented evidence that due to Florene’s mental and physical condition, David, as the person primarily responsible for Florene’s care, had the opportunity to exercise undue influence over Florene. Mere opportunity to exercise undue influence is not enough; there must be evidence that that influence was actually exerted upon the testator with respect to the testamentary document in question. The record contains no evidence—beyond speculation on the part of Randall, Lorraine, and Louise—that David actually exercised undue influence over Florene in order to procure execution of the January 2012 will. There is no evidence in the record that David ever requested that Florene change her will from the April 2011 will—which included specific bequests for David but did not leave any portion of the residuary estate to him due to his obtaining full ownership of the Pflugerville property—to the January 2012 will, which left the entirety of Florene’s estate to David. Furthermore, there is no evidence that David played any role in Florene’s decision to change her will or in preparation of the January 2012 will. As stated above, both David and Ferringer testified that Florene was the one who contacted Ferringer about changing her will. David was not present at the time or at the time of the new will’s execution. Considering all the evidence in a neutral light, we conclude that the probate court’s implied finding that no undue influence occurred in connection with execution of the January 2012 will was not against the great weight and preponderance of the evidence.

Id. The court of appeals affirmed the trial court’s judgment admitting the contested will to probate.

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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