Estate of Klutts, No. 02-18-00356-CV, 2019 WL 6907540 (Tex. App.—Fort Worth Dec. 19, 2019, no pet. h.).

Opinion withdrawn due to settlement.
2020 WL 1646581 (Apr. 2, 2020).


Will Contests

Testatrix executed four wills. In the first two, she left her property equally to her one son and three step-daughters. In the last two, she favored her own son and, to a lesser extent, one step-daughter. After the testatrix died, a dispute arose regarding whether the last two wills were written as a result lack of testamentary capacity and undue influence. The trial court granted summary judgment that the third will revoked the earlier will and that the testatrix had not been unduly influenced. On appeal, the step-daughters claim that there was a fact issue regarding undue influence and that the son failed to show that the testatrix had testamentary capacity when she signed the third will.


The court first decided that the trial court’s grant of a summary judgment on the no-evidence motion on undue influence was incorrect. The son was the testatrix’s agent under a power of attorney which turned him into a fiduciary. Thus, the burden of proof which is normally on the contestant to show undue influence shifted to him to show lack of undue influence. This precluded the trial court from granting the no-evidence summary judgment motion.


The court then examined the evidence and determined that it did not conclusively prove that the testatrix had testamentary capacity when she signed the third will revoking the will which treated all children equally. The son did offer four witnesses who testified that testatrix had capacity when she executed the will. The court explained, however, that a jury is not bound to believe any of the witnesses and thus the witnesses’ testimony was not conclusive proof of capacity.


A dissenting opinion would have affirmed on the testamentary capacity issue because there appears to have been no evidence directly controverting the testimony of the four witnesses and no circumstantial evidence reasonably inferring a problem with capacity.


Moral:  (1) A no-evidence motion of summary judgment is not available if the alleged undue influencer is a fiduciary. (2) A grant of a motion for summary judgment may be improper even if there is no evidence contrary to the movant’s position because a jury could disregard all of the testimony of witnesses.