Like most will contests, the case of In re Estate of Buford is about good old-fashioned greed. Buford’s investigator and the investigator’s assistant convinced Buford over a period of three years to execute a series of wills to their benefit. The jury found that the wills were either signed without testamentary capacity or as the result of undue influence. As a result, the trial court declared all of the wills to be invalid resulting in Buford’s cousins inheriting Buford’s estate. In re Estate of Scott, 08-19-00011-CV, 2020 WL 1685419, at *1 (Tex. App.—El Paso Apr. 7, 2020, no pet. h.)

In order to understand why the jury made this determination, you must first understand a little about Buford.

Buford Scott, Jr., who never married and had no children, grew up on a ranch in Cresson, Texas, where he lived until his death in August of 2015. For most of his life Buford lived a sheltered existence with his immediate family members. Buford who had a below average IQ and some cognitive impairments, did not graduate from high school until he was 22 years old, and was never regularly employed outside of working on his family’s ranch. His parents and his only sibling predeceased him, each dying intestate. When his mother passed away in 2003 or 2004, Buford inherited a substantial estate, but was left to live alone on the ranch.

In re Estate of Scott, supra, at *1.

Buford’s troubles appear to have begun after he was left to live alone. After his mother passed away, his mother’s attorney became concerned about Buford’s welfare and initiated guardianship proceedings. The court-appointed doctor found that Buford was mentally retarded, suffered from substance or alcohol abuse, was unable to make his own financial and medical decisions and was totally incapacitated. As a result, the court ordered that a management trust be created for Buford’s benefit.

In June 2012, Buford contacted a private investigator, Tait, whose name Buford found in a phone book, to assist Buford in setting aside the court-ordered management trust. Tait and his assistant, Rueda, agreed to help Buford with his endeavor. They saw Buford almost every day over a 3 year period. During that time, Buford paid them tens of thousands of dollars for their investigation and other services and even gave their family members cash bonuses and gifts.

In August 2012, Tait began discussing with Buford the need for Buford to sign a will, trust, and power of attorney. Tait even contacted an attorney to discuss this at which time Tait learned that Buford could sign a hand-written will instead of a more formally executed will. On March 23, 2013 Buford signed a will in Buford’s hand-writing stating that he wished to create a charitable trust to which all of his assets would pass at the time of his death. It also stated that Buford had aunts, uncles, and cousins but he did not wish to leave anything to them. In actuality, Buford only had living cousins. He did not have any living aunts or uncles. The will stated he was upset with his cousins because he believed they participated in the guardianship proceedings.

Tait contacted two psychologists in 2014 to examine Buford to establish that Buford didn’t need a court-ordered management trust or guardianship. Although, the psychologists found Buford had below-average IQ, they concluded that he was not incapacitated. Based upon these reports, the trial court presiding over the guardianship restored Buford to full legal capacity. One month later Buford signed a Limited Power of Attorney giving Tait the right to make financial decisions on behalf of Buford.

In early July 2015, Tait and Rueda noticed that Buford looked in poor health and Tait drafted a will for Buford to sign but Tait failed to get the Will notarized or witnessed.

On July 19, 2015, Buford was admitted to the hospital with terminal esophageal cancer and died one month later. On the second day at the hospital, Buford signed another will that Tait had drafted. Tait videoed the execution of the July 21, 2015 Will at the hospital. The video shows Buford laying in the hospital bed and Tait summarizing the Will. Tait had Buford confirm that he was making the majority of his bequests to a charitable trust, making some bequests to Tait and Rueda, and not leaving anything to Buford’s cousins because Buford believed that his cousins were involved in the previous guardianship proceedings.

Tait consulted with an attorney in August 2015 who told Tait that the July 21, 2015 Will could have been drafted better. Tait revised the will and added more details about the charitable trust and included a self-proving affidavit. The will was signed by Buford, on August 13, 2015, at the assisted nursing facility where he was staying. Tait conducted a video recorded interview with Buford in which Buford acknowledged his awareness of the will’s provisions, that a “large bequest” had been left to a charitable trust and he had also “left things” to Tait, Rueda, and five others named in the will.

This August 13, 2015 Will named Tait as the Trustee of the charitable trust. Buford also stated he had not left anything to his cousins because of the guardianship. In actuality, the value of the mineral leasing rights that were to pass under the Will to the charitable trust upon Buford’s death were only worth about $33,000. The Will gave all of Buford’s real and personal property to Tait and Rueda, $350,000 cash to Tait, and $200,000 cash to Rita. The Will named Tait’s and Rita’s children as alternate beneficiaries. The total value of the requests to Tait and Rueda was estimated to be $2.4 million. Under the terms of this Will,  Buford disinherited his cousins for failing to speak up on his behalf during the guardianship proceedings. Buford died five days later. His cousins did not learn about his death until several months later.

After Buford died, Tait submitted the August 13, 2015 Will to probate and the court named him as the executor of the estate. Subsequently, Buford’s two surviving cousins contested the August 2015 Will on the grounds that Buford lacked testamentary capacity and had been unduly influenced by Tait in the signing of the Will. The jury found that Buford:

1. Lacked testamentary capacity to sign the August 13, 2015 will and signed it as a result of undue influence;
2. Lacked testamentary capacity to sign the July 21, 2015 Will and signed it as the result of undue influence; and
3. Had testamentary capacity to sign the March 23, 2013 Holographic (hand-written) Will but signed it as a result of undue influence.

Based upon the jury’s verdict, the trial court declared that all 3 wills were invalid, resulting in the cousins inheriting Buford’s estate. Tait and Rueda appealed on the grounds that there was insufficient evidence to support the jury’s findings.

The Court of Appeals provides a good history of the law on undue influence.

Generally, the term undue influence describes “such influence or dominion as exercised at the time, under the facts and circumstances of the case, which destroys the free agency of the testator, and substitutes in the place thereof the will of another.” Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1035 (1939). As this Court has recognized, “[t]he exercise of undue influence may be accomplished in many different ways–directly and forcibly, as at the point of a gun; but also by fraud, deceit, artifice and indirection; by subtle and devious, but none-the-less forcible and effective means.” In re Olsson’s Estate, 344 S.W.2d 171, 173-74 (Tex.Civ.App.–El Paso 1961, writ ref’d n.r.e.). Or as the Texas Supreme Court stated, undue influence may take the form of “force, intimidation, duress, excessive importunity or deception used in an effort to overcome or subvert the will of the maker of the testament and induce the execution thereof contrary to his will.” Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).

To prove undue influence, the contestant must convince the fact finder of: (1) the existence and exertion of an influence; (2) that the influence subverted or overpowered the mind of the testator at the time of the execution of the testament; and (3) the maker would not have executed the testament but for that influence. Id. The burden is upon the contestant to prove each of these allegations by a preponderance of the evidence. Woods’ Estate, 542 S.W.2d 845, 846 (Tex. 1976); see also Matter of Kam, 484 S.W.3d 642, 651-53 (Tex.App.–El Paso 2016, pet. denied) (recognizing that once evidence established that will was signed in compliance with all statutory requirements, the burden shifted to will contestant to establish that the will should be voided as the product of undue influence).

In re Estate of Scott, supra, at *7.

The Court of Appeals then focused on whether there was sufficient evidence to support the jury’s findings that Buford was unduly influenced into signing each of the three Wills. The Court found that there was sufficient evidence including that:

1. When Buford met Tait and Rueda, Buford did not have a will and had no intent to draft one.
2. By the time Buford signed the March 23, 2013 Holographic Will, Tait had taken over almost all of Buford’s legal affairs.
3. There was evidence that Buford was susceptible to being unduly influenced, including medical testimony that Buford showed signs of paranoia and had cognitive impairments. Tait and Rueda played on Buford’s paranoia about his cousins’ participation in the guardianship.
4. Buford signed a power of attorney giving Tait control over Buford’s financial, legal and medical decisions.
5. Tait and Rueda received bequests in excess of $2 million under the July and August 2015 Wills.
6. Buford was in a weakened condition when he signed the July and August Wills and Tait and Rueda took advantage of this.
7. Tait drafted at least 3 different formal wills for Buford to sign during Buford’s stay at the hospital.
8. Tait misrepresented the terms of the wills by falsely stating that Buford was leaving the majority of his estate to a charitable trust when in fact only one minor asset was bequeathed to the trust and the most valuable assets were bequeathed to Tait and Rueda.

Needless to say the Court of Appeals affirmed the trial court’s judgment setting aside the Wills, resulting in Buford’s cousins inheriting his estate.