In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.).


Will Contest


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.