In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.).
Testator and Wife worked together on Testator’s
will using a computer program which prepared his will according to his
answers to questions generated by the software which included an express
provision that he was intentionally omitting his two children. Sometime
thereafter, Testator suffered a stroke and was hospitalized for three
days. Eleven days after being discharged, Testator had a will signing
party at his home attended by family members and friends. After
socializing with the guests and shooting pool, the will execution
ceremony took place. One of the guests, a notary, testified that
Testator asked his wife to sign the will for him and that three
witnesses attested to the will in Testator’s presence. During the months
which followed, Testator continued his therapy, was able to drive, and
even went back to work. About a year after the will execution ceremony,
Testator died.
Wife filed the will for probate and Testator’s
children contested alleging that Testator lacked testamentary intent and
testamentary capacity as well as being under Wife’s undue influence. The
trial court heard the testimony of the people at the will party and
admitted the will to probate. Testator’s children appealed.
The appellate court affirmed. First, the court
examined the document itself such as being labeled as a “last will and
testament,” providing for the disposition of his property, and naming an
executor. The court held this was sufficient to support the trial
court’s implied finding that Testator had testamentary intent.
Second, the court examined the evidence which
supposedly demonstrated that Testator lacked testamentary capacity. The
court recognized that Testator’s stroke shortly before executing the
will could put his capacity into question. However, there was ample
testimony from individuals present at the will execution party who swore
that Testator appeared to be of sound mind and that he knew he was
executing a will.
Third, the court determined that there was
insufficient evidence to set aside the will on the basis of undue
influence. Although there was circumstantial evidence that Wife could
have exerted undue influence such as being named as the sole beneficiary
to the exclusion of his children and participating in the preparation
and execution of the will, there was insufficient evidence that she
actually exerted any undue influence. Merely having the opportunity to
exert such influence does not prove that Wife took advantage of that
opportunity.
Moral: Anytime a testator has a medical
condition which could give rise to a contest based on lack of capacity
or undue influence, the attorney should take steps to preserve evidence
which demonstrates capacity and lack of undue influence. In addition, a
testator should consult with an attorney when executing a will rather
than using a computer program and then throwing a will execution party.