Undue influence: opportunity and action

Undue influence and/or lack of testamentary capacity are the primary allegations in a Texas will contest. What is undue influence?  Like many legal concepts it is not easily applied to a given fact circumstance and reasonable minds can offer differ on the issue of what really constitutes undue influence on a testator. The Texas Supreme Court has stated the following elements for undue influence:

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.

Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963). Easy enough? The influencer had opportunity and took advantage of the opportunity.  In reality, proving opportunity is not difficult.  It might be a caregiver or a relative who spent more time with the testator than anyone else.  It might be a person of trust who the testator relied upon to meet daily needs. But proving opportunity isn't enough. And proving efforts to influence the testator isn't enough either. Instead, it is necessary to prove the actual exertion did influence the testator to change the instrument at issue.  Does the instrument reflect the true wishes of the testator or instead does it reflect what the influencer wanted? Dallas - Fort Worth metroplex and North Texas will contest attorneys