Estate of Russey, No. 12-18-00079-CV, 2019 WL 968421 (Tex. App.—Tyler Feb. 28, 2019, no pet. h.)


Will Contest

Undue Influence

The trial court examined the evidence and determined that the testatrix’s will was invalid because it was executed while she was being unduly influenced. The appellate court affirmed.


The court reviewed the evidence and determined it was legally and factually sufficient to prove that the sole beneficiary, a non-family member, had exerted undue influence over the testatrix. The court based its analysis on the non-exhaustive ten-factor list of considerations the Texas Supreme Court set forth in Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963). A few of the many factors the court discussed which showed the undue influence and the testatrix’s inability to resist included the beneficiary was subject to deferred adjudication for theft and needed to repay almost $40,000 in restitution which she had not done, the beneficiary had accused the testatrix of stealing from the beneficiary’s business for which the testatrix had worked, the testatrix relied on the beneficiary for her care and transportation during her last illness, the beneficiary worked to keep the testatrix and her children and grandchildren estranged, and the beneficiary printed the will, give it to the testatrix to sign, and wrote the date of the will.


Moral:  It is difficult to overturn a trial court’s determination of undue influence as long as there is sufficient evidence even if that evidence could be subject to other interpretations.