Undue Influence

Longaker v. Evans, 32 S.W.3d 725 (Tex. App.—San Antonio 2000, pet. withdrawn).


Son alleged that Mother’s Brother exerted undue influence over Mother which caused Mother to execute a new will which enlarged Brother’s share of Mother’s estate. The trial court reviewed the evidence and determined that Brother did not exert undue influence. Son appealed.

The appellate court determined that the trial court’s finding was not contrary to the great weight and preponderance of the evidence. Although Brother had the opportunity to exert undue influence, there was insufficient evidence to show Brother subverted Mother’s free agency. Son merely raised a “bare suspicion” of undue influence.

Moral: A finding of lack of undue influence is extremely difficult to set aside on appeal and thus a contestant must make the best possible case at trial.


Other Matters

Duty of Beneficiary and Legal Malpractice

Longaker v. Evans, 32 S.W.3d 725 (Tex. App.—San Antonio 2000, pet. withdrawn).


Settlor terminated an inter vivos trust resulting in certain assets passing to Settlor’s Brother instead of Son. Son asserted that Brother, an attorney, violated his fiduciary duty to Settlor by assisting her to terminate the trust. The appellate court determined that this claim failed for a variety of reasons. First, Settlor was not damaged by the termination, even it was improper, because all of the trust’s assets were in Settlor’s estate. Second, Brother did not owe Son a duty because there was no attorney-client relationship between Son and Brother. In addition, there was evidence showing Settlor was acting upon her own wishes when she terminated the trust.

Moral: The Barcelo shield continues to hold to protect attorneys from liability to third parties.




“Corporate Stocks and Bonds”

Longaker v. Evans, 32 S.W.3d 725 (Tex. App.—San Antonio 2000, pet. withdrawn).


Beneficiary asserted that municipal bonds and mutual funds were within the scope of a bequest in Testatrix’s will which left Beneficiary “corporate stocks and bonds.” The trial court held that the municipal bonds and mutual funds were not covered.

The appellate court reversed. The court focused on the language in Testatrix’s will because no one asserted that the will was ambiguous. The court defined each of the relevant terms:

§ corporate stock – “securities issued by a corporation”

§ corporate bonds – “debts instruments issued by a corporation”

§ mutual fund – “an investment company that raises money by selling its own stock to the public and investing the proceeds in other securities, with the value of its stock fluctuating with its experience with the securities in its portfolio”

§ municipal bond fund – “mutual fund that invests the proceeds of its stock sales in municipal bonds, with are evidences of indebtedness issued by cities or other corporate public body, negotiable in form, payable at designated future time, and intended for sale in market with object of raising money for municipal expense”

The court then concluded that Testatrix’s mutual funds and municipal bonds fit within the purview of a gift of “corporate stock and bonds.”

Moral: The testator should define key words used to make gifts to be certain the beneficiary receives the intended gift (no more, no less).