Undue Influence and Lack of Testamentary Capacity

The topic will be presented from the perspective of a will contestant seeking to address the question: “In the trial of a will contest, as to the claims of undue influence and lack of testamentary capacity, how much evidence is enough?” The presentation is based upon a broad analysis of the actual evidence used to attempt to establish claims of lack of testamentary capacity or undue influence in Texas will contests, gleaned from all Texas Appellate opinions on will contests decided since the Texas Supreme Court set out the elements of undue influence in the landmark case of Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963), consisting of sixty years of Texas Appellate Court opinions. The presentation will also analyze and compare the results between jury trials and bench trials, to review the effect of the choice of the trier of fact. The presentation will review how certain types of evidence which are frequently touted as “game changers” actually effected the outcome of the lack of testamentary capacity and undue influence claims at the trial court level in the reviewed cases. Finally, the presentation will address lessons which estate planners should learn about protecting against claims of undue influence and lack of capacity. The presentation will incorporate a game allowing the audience to serve as the judge or jury in guessing how several undue influence/lack of capacity will contests turned out based upon the facts presented at trial.