In re Estate of Henry, 250 S.W.3d 518 (Tex. App.—Dallas 2008, no pet.).
Testatrix’s first will left her property to an inter vivos trust
which included both her children and her step-children as beneficiaries.
Her second will, however, left her property outright to her husband. The
probate court admitted the second will to probate. Testatrix’s children
appealed claiming this will was invalid because Testatrix executed it
while under undue influence.
The appellate court affirmed holding that there was insufficient
evidence to show that Testatrix’s second will was the result of undue
influence. Testatrix’s children presented evidence which they claimed
proved undue influence such as statements that Testatrix was
uncomfortable with signing a new will and that her husband (now
deceased) said he would divorce her if she did not sign the new will.
However, this evidence was counterbalanced by testimony of Testatrix’s
attorneys that she never indicated that she was being coerced and that
Testatrix even sought the advice of another attorney. In addition,
Testatrix’s husband was not present when she signed the new will. The
appellate court then concluded that the probate court’s finding was not
against the great weight and preponderance of the evidence to be clearly
wrong and unjust.
Moral: Strong evidence is needed to overturn a probate court’s finding
that undue influence did not cause a testator to sign a will.
Proponents attempted to probate Testatrix’s 1996 will. They were
unsuccessful because the court decided to admit a will Testatrix
executed in 2004 instead. The probate court awarded $12,000 as necessary
and reasonable attorney’s fees under Probate Code § 243 holding that
Proponents presented the will in good faith. The proponent of the 2004
appealed.
The appellate court affirmed. The court rejected the claim that the
award was improper because Proponents did not timely file their amended
pleading asking for fees and did not seek leave of court to file an
amended pleading. The court determined that it was nonetheless not an
abuse of discretion for the probate court to make a fee award under
Probate Code § 243. Under the facts, there was adequate notice and
opportunity to object to the request for fees.
Moral: A request for attorney’s fees and costs under Probate Code § 243
should be made in the original pleadings or as promptly as possible
thereafter to avoid a claim that the request was untimely.