Altice v. Hernandez, 668 S.W.3d 399 (Tex. App.—Houston [1st Dist.] 2022, no pet. h.).



The trial court admitted Testatrix’s will to probate which named her granddaughter as executor and sole beneficiary. Thereafter, one of Testatrix’s children claimed the will was invalid as not meeting Texas requirements, containing a forged signature of the Testatrix, or procured by undue influence. These claims were unsuccessful and the contesting child appealed.


The appellate court affirmed after examining the circumstances surrounding the will. The witnesses to the will were one of Testatrix’s children (father of the sole beneficiary) and the sole beneficiary’s future (after Testatrix’s death) husband. The notary testified that he notarized the self-proving affidavit’s signatures of Testatrix and one of the witnesses (Testatrix’s son), but not the second witness (future son-in-law). The witnesses testified that they signed the will in the Testatrix’s presence but not at the same time. A handwriting expert concluded that Testatrix’s signature was genuine. The opinion contains extensive additional details the execution of the will and the self-proving affidavit with somewhat conflicting testimony which shows that a normal (proper) will execution ceremony did not take place.


The court rejected three claims that the will was invalid based on formalities. First, the contestant claimed that a valid will requires the testator to initial each page, especially if the will itself, as this one did, indicate an intent that the testator was to initial each page. Second, the court rejected the contestant’s claim that Texas law requires the testator to sign in the witnesses’ presence. The court explained that Texas law requires the opposite, that is, that the witnesses attest in the testator’s presence and that there is no requirement that both witnesses attest at the same time. Again, it did not matter that the will itself stated that the testator signed it in the presence of both witnesses. Third, although the court did agree that the requirements for a valid self-proving affidavit were not satisfied, the court explained that the self-proving affidavit only deals with the manner of proving the will, not its validity.


Moral:  A formal will execution ceremony should be conducted to avoid the issues raised in this case.


Undue Influence

Both the trial and appellate courts agreed that the testatrix’s will was not the product of undue influence. The opinion is notable for its comprehensive listing of the elements of undue influence which, citations omitted, is set forth below:


We may consider ten non-exhaustive factors when determining whether undue influence exists. The first five factors concern whether the proponent exerted any influence over the testator, considering:

(1) the nature and type of relationship between the testator, contestant, and proponent;

(2) the opportunities existing for the exertion of the type of influence or deception possessed or employed;

(3) the circumstances surrounding the drafting and execution of the will;

(4) the existence of a fraudulent motive;

(5) whether there has been habitual subjection of the testator to the control of another.

The next four factors are used to determine whether the testator's will was subverted or overpowered by any influence exerted by the proponent, considering:

(6) the state of the testator's mind at the time he executed the will;

(7) the testator's mental or physical incapacity to resist such influence or the susceptibility of the testator's mind to the type and extent of influence exerted;

(8) the words and acts of the testator;

(9) the testator's weakness of mind and body, whether a result of age, disease, or otherwise.

Finally, the tenth factor is relevant to determining whether the will would have been executed in the absence of the influence exerted by the proponent, considering:

(10) whether the will executed is unnatural in its disposition of the testator's property.


After reviewing the evidence, the court concluded that the jury’s finding that undue influence did not exist (the first five factors) was not against the great weight and preponderance of the evidence.


Moral: A will contestant alleging undue influence needs to have actual proof that such influence was actually exerted and not just mere opportunity or a reason that exerting influence would be beneficial to a will beneficiary.