Wills and Undue Influence

October 22, 2010
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A recent Texas case illustrates the effect of undue influence in probate matters. In the matter entitled In the Estate of Clifford Eugene Everett, deceased, (No. 04-09-00050-CV, October 13, 2010) the 4th Court of Appeals of Texas considered a situation in which the decedent executed three wills dated March 21, 2005, (“first will”), April 13, 2007, (“second will”) and April 24, 2007, (“third will”). The decedent’s oldest son Joe attempted to probate the third will and qualify as executor of the estate. The decedent’s step-grandson, James, filed an Opposition to Probate to the third will, and he also filed to become the executor under the first will. The jury found that Joe procured the third will by undue influence and fraud, and Joe appealed.
The decedent, Clifford Everett (“Cliff”), died at 79 years of age, survived by four children from his first marriage, and four step-children from his second marriage. He developed and operated the Holiday Travel Park (“the Park”) in Del Rio, Texas, and his step-grandson James assisted him with the daily operations. Cliff relied on James extensively during the last six years of his life, and the two had a close relationship. Cliff’s son Joe did not see his father regularly, and he had not seen his father between 2002 and his father’s hospitalization in 2007. Cliff died on May 9, 2007, after an illness that began a few months earlier.
The first will was prepared by a local attorney and executed on March 21, 2006. It devised $100 to each of Cliff’s four children and four step-children, with the residuary estate (including ownership of the Park) being devised to James. The second will was prepared by the husband of Cliff’s daughter Geneie and was executed on April 13, 2007. It devised Cliff’s entire estate, including the Park, equally among James and Cliff’s four children, and it named Geneie as executor. The third will was prepared by Joe’s wife, and was executed on April 24, 2007. It had the same disposition as the second will, but named James and Joe as co-executors.
At trial, the jury found that the third will was procured by undue influence and fraud by Joe. The court denied probate of the third will, admitted the first will to probate and issued Letters Testamentary to James. On appeal, the court reviewed both undue influence and fraud. With respect to undue influence, under Texas law, the party contesting the will “must prove the (1) existence and exertion of an influence (2) that subverted or overpowered the testator’s mind at the time he executed the instrument (3) so that the testator executed an instrument he would not otherwise have executed but for such influence.” The parties disagreed as to the relevant factors that the appeals court must consider in its review. Interestingly, in this case, under Texas law, the court had to “measure the sufficiency of the evidence against the jury charge actually given to the jury when the opposing party fails to object to the charge,” and not just the factors listed above. The court looked at all of the evidence of relevant factors occurring within a reasonable time both before and after the will’s execution. The first will was executed when Cliff was in good health, and he confirmed his intention to leave the Park to James. When Cliff was admitted to the hospital on April 8, 2007, James informed Geneie about the hospitalization. Genie’s husband drafted a new two page will, using internet sources, for Geneie to present to Cliff the following day. Geneie presented Cliff with the new will within hours after Cliff was sedated for a colonoscopy-type procedure. James learned of the new will after Geneie called the Park looking for a notary. Geneie told James in Cliff’s presence that if James inherited the Park, he would have to come up with $500,000 to pay inheritance tax on the bequest, or sell the Park. Cliff was upset at this information, and reassured James that nothing was going to change regarding the Park. James never read the second will, but he contacted two of Cliff’s friends to witness the execution of the will. One of the witnesses testified that the execution was at Geneie’s direction and was a “hurry-up-job.” He described Cliff was “fairly meek,” and he said that Cliff confirmed to the witnesses that he intended to give the Park to James.
Eleven days after the Cliff executed the second will, Joe presented Cliff with the third will to be executed thirty minutes prior to the surgery that ultimately led to Cliff’s death. Joe had arranged for the witnesses and the notary to be present for the execution, and James was never notified prior to Cliff’s death that the third will had been executed. One of Cliff’s close friends testified that Cliff had often said that he wanted James to take over the Park. The friend saw Cliff as the hospital staff was taking Cliff to surgery, and the friend said that Cliff was “sedated” and was not sure that Cliff recognized him. Joe and Geneie fired personnel, changed bank accounts, and changed locks at the Park immediately after Cliff’s death.
Regarding the condition of the testator’s mind and body, during the month of April 2007, Cliff spent most of the time in intensive care units in hospitals in Del Rio and San Angelo. He was quite ill and in a great deal of pain. The family was aware of Cliff’s desire to keep the Park intact and under James’s control, and his concerns about taxes on the property. Regarding the relationships between the testator and the recipients of the assets in Cliff’s estate and the motive and conduct of the persons benefitted, the court found that Cliff had a close relationship with James, but not with his children or step-children. Additionally, James, as well as several of Cliff’s close friends, testified that Cliff wanted James to take over the Park.
The court’s analysis revealed that the evidence at trial supported the jury’s verdict regarding undue evidence for several reasons. First, Geneie played on Cliff’s anxieties regarding inheritance taxes and the potential that the Park would have to be sold to pay them. Second, Joe was in a position to influence Cliff to sign the third will because Cliff was upset about his medical condition and was concerned that he might not even survive the surgery. Third, the close proximity in time of the second and third wills, and that both wills were drafted by a spouse of a beneficiary also supported the jury’s finding of undue influence. Geneie and Joe both stood to benefit from the second and third wills, and they participated in the drafting and execution of the wills. The court found that the testimony of Cliff’s friends that Cliff intended to leave the Park to James, and the weakness of Cliff’s mind and body supported the jury’s finding. The court held that the record supported the jury’s findings and overruled Joe’s legal and factual sufficiency challenges. The court did not address the issue regarding the jury’s finding of fraud.
The attorneys at Oast & Hook can assist clients with their estate, financial, insurance, life care, veterans benefits and special needs planning issues. They can also assist clients with fiduciary litigation issues.

Ask Allie

O&H: Allie, we’ve heard about a wonderful woman who helps cats in Hurricane, Utah. Please tell us about her.
Allie: Sure! Susan Barrett is an animal rescuer and feline foster parent. She lives in a small country town, so she faces challenges different from animal rescuers in urban areas. She may have to drive an hour or more for services for the cats in her care, and there is not as much support for spay and neuter services because many believe that “nature will take care of itself.” On some days, Ms. Barrett may be fostering kittens and trapping free roaming cats for spay and neuter programs, and on other days she may be helping to socialize cats that were neglected and surrendered to the Hurricane Animal Shelter. She also visits ranches to relocate abandoned semi-feral cats. Lynda Kinsman, an animal control officer in Hurricane, says “She’s helped literally thousands of cats and changed the way people here treat animals.” She sounds like a great friend to cats in her community! Time to check out the neighborhood from the front door. See you next week!


Oast & Hook attorney Sandra Smith will speak on the topic of estate planning from 10:00 a.m. to 2:00 p.m., Saturday, October 23rd at Bethel African Methodist Episcopal Church located at 94 West Lincoln Street, Hampton, Virginia 23669. For more information on this church, please visit www.bethelhame.com. For more information on this presentation, please phone Jennie Dell at 757-399-7506.
Oast & Hook attorney Letha McDowell will speak on the topic of veterans benefits from 9:30 a.m. to 11:00 a.m., Saturday, November 6th at King’s Grant House located at 440 North Lynnhaven Road, Virginia Beach, Virginia 23452. For more information on this presentation, please phone Jennie Dell at 757-399-7506.

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