In re Estate of Henry, 250 S.W.3d 518 (Tex. App.—Dallas 2008, no pet.).


Undue Influence


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.


Estate Administration

Attorney’s Fees

Unsuccessful Attempt to Probate 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.