In In re Estate of Hogan, a father executed a new will, leaving his estate to one of his sons (Harold) and disinheriting his other son (Gary). No. 11-20-00170-CV, 2022 Tex. App. LEXIS 3863 (Tex. App.—Eastland June 9, 2022, no pet. history). Gary filed a will contest, and the trial court heard same in a bench trial. After the court ruled against Gary, he appealed.

The court of appeals discussed the burden of proof regarding mental competence:

Before a will is admitted to probate, the will’s proponent bears the burden of establishing that the testator had testamentary capacity at the time of its execution. The proponent of the will may make a prima facie case that the testator had testamentary capacity by introducing a self-proved will into evidence. The burden of production then shifts to the contestant to put forward evidence that negates testamentary capacity. The burden of persuasion, however, always remains with the will’s proponent. In short, a self-proved will does not relieve the proponent of their burden of proving that the testator had testamentary capacity when the will was executed.

Id. Because the will was self-proved, the court held that the contestant had the burden of producing evidence showing that decedent did not have testamentary capacity at the time that he executed the will, but that the ultimate burden of persuasion remained with brother offering the will for probate.

The court then turned to the evidence of mental competence. The court denied the legal sufficiency challenge citing the drafting attorney’s testimony that the decedent understood the will and was able to execute it. The court also denied the factual sufficiency challenge. The court cited to conflicting evidence of the decedent’s mental competence, including medical records a year after the will’s execution indicating that the decedent was not competent and had Alzheimer’s. The court stated:

The pivotal question in a case like this is not whether Decedent had episodic dementia, was periodically unable to drive, or lacked testamentary capacity a year after executing his will, but whether he had testamentary capacity “at the time the will was executed.” Evidence of dementia before and after a will is executed can be used to prove that Decedent lacked testamentary capacity only if it demonstrates a persistent condition that probably affected his competency when he executed the 2010 will. That type of evidence is not in the record before us. Nevertheless, the evidence in the record does support the conclusion that Decedent was regularly lucid at least pre-2011. Further, Appellant presented no evidence that Decedent was not lucid when he executed the 2010 will before two persons with an established legal background who witnessed its execution and swore on their oath that Decedent was of sound mind when he did so.


The court then turned to the undue influence claim and discussed the burden of proof:

The party contesting a will generally bears the burden of proving undue influence. But if the contestant introduces evidence of a confidential or fiduciary relationship between the testator and the proponent, a presumption of undue influence arises and the proponent must produce evidence showing an absence of undue influence. This is a rebuttable presumption that only shifts the burden of production; the burden of persuasion remains with the party contesting the will. If the proponent introduces evidence contradicting the presumption, “the presumption is extinguished, and the case proceeds as if no presumption ever existed.”

Id. The court assumed, without holding, that the proponent owed fiduciary duties because of his caretaker position with the decedent. The court held that the proponent produced evidence that met his initial burden of proof such that the presumption of unfairness was extinguished: “Appellee satisfied his burden of producing evidence rebutting, and thereby extinguishing, any presumption of undue influence. Therefore, we proceed as if there was no such presumption in the first place. Consequently, Appellant’s legal and factual sufficiency complaint challenges an adverse finding on an issue (undue influence) for which he had the burden of proof at trial.” Id.

The court then reviewed the evidence for legal and factual sufficiency and affirmed the trial court’s order rejecting the undue influence claim and admitting the will to probate:

Appellant presented some evidence supporting the existence of an influence in that Appellee was Decedent’s caretaker and he and Carla had frequent contact with Decedent. By comparison, Appellant only saw Decedent “two times a year.” However, Appellant presented no evidence that Appellee had any fraudulent motive or that Appellee had habitually subjected Decedent to his control… In short, even when viewed in the light most favorable to Appellant, the evidence only establishes that there was an opportunity for Appellee to exert an influence over Decedent. We “cannot infer the exertion of undue influence based on opportunity alone.” Indeed, “having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing.” Thus, Appellant has failed to show that the evidence established the existence and exertion of an influence as a matter of law.


The evidence in the record shows that Appellant rarely had contact with Decedent, while Appellee and his girlfriend saw Decedent on a weekly and daily basis, respectively, and took care of him in many ways. It may simply be that Decedent wanted to bequeath all of his property to the son who was present in his life and supported him. Additionally, evidence presented at trial demonstrated that the Decedent’s prior will, by devising everything to Appellant and Appellee in equal shares, disinherited his daughter and his granddaughter by a predeceased son. It is reasonable to conclude that the 2010 will was not the first time Decedent had considered and decided upon disinheriting a child. In that context, the 2010 will’s disposition is not unnatural or unusual.


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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