Undue influence is a form of legal fraud that is often alleged in contests to a Will. It may exist without resort to false representations, but by a more subtle form of deceit or cunning, particularly where there was been an unconscionable advantage taken of a confidential relationship. See Pace v. McEwen, 574 S.W.2d 792, 800 (Tex.App.—El Paso, 1978, re’hrng denied); 25 Tex.Jur.2d Fraud and Deceit, Secs. 4 and 8 (1961).
Generally, the establishment of the existence of an influence that was undue is based upon an inquiry as to the nature and type of relationship existing between the testator, the contestants, and the party accused of exerting such influence. The establishment of the exertion of such influence is generally predicated upon an inquiry as to the following:
- Opportunities existing for the exertion of the type of influence;
- Deception possessed or employed;
- Existence of a fraudulent motive; and
- Habitual subjection to the control of another.
Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963)
The elements of undue influence include: (1) the decedent’s susceptibility to undue influence, (2) opportunity to exert such influence, (3) a disposition to do so for an improper purpose, and (4) a result clearly showing the effects of undue influence. 79 Am.Jur 2 Wills § 359, at 576-77 (2013). Grounds for undue influence that the contestant must prove:
- The existence and exertion of an influence;
- The effective operation of such influence so as to subvert or overpower the mind at the time of execution of the instrument;
- The execution of an instrument which the maker would not have executed but for such influence.
Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963)
The burden of proving undue influence is upon the party contesting the execution of a document. The contestant must introduce tangible and satisfactory proof of the existence of each element of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 138.
The influence is not undue unless the free agency of the person is destroyed. Influence that was or became undue may take the nature of, but is not limited to force, intimidation, duress excessive importunity or deception used in an effort to overcome or subvert the will of the maker. The courts of Texas treat the exertion of such influence in the execution of a dispositive instrument as a species of legal fraud. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963)
The exertion of influence that was or became undue is usually a subtle thing and by its very nature usually involves an extended course of dealings and circumstances. Thus, it is settled that the elements establishing undue influence may be proved by what is known as circumstantial, as well as by direct evidence. In the absence of direct evidence, all of the circumstances shown or established by the evidence should be considered; and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the person, the evidence is sufficient to sustain the conclusion. Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).
The information presented in this article should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.