Zeke lost his battle to cancer and died in 2018. He had no children and was survived by his 2 brothers, George and William. In 2010, Zeke drafted a Will leaving everything to Linda who Zeke had lived with for 30 years. George and William contested the 2010 Will on the grounds that Zeke was unduly influenced by Linda into executing it. Linda filed a no evidence motion for summary judgment that was granted by the trial court. The Court of Appeals affirmed. Estate of Grogan, 595 S.W.3d 807 (Texarkana 2020, no pet.).

In rendering its decision, the Court of Appeals stated that, in order to successfully contest a will based upon undue influence, a will contestant must show:

‘(1) the existence and exertion of an influence (2) that subverted or overpowered the mind of the testator at the time of execution of the instrument (3) so that the testator executed an instrument he or she would not otherwise have executed but for such influence.’

Estate of Grogan, supra, *813.

The Court of Appeals relied upon the following key facts:

• Zeke had a strained relationship with his brothers. The brothers operated a dental practice together until 1979 when George strangled brother William in the office. George admitted he would have killed William if Zeke had not intervened. George never spoke to William again and after the fight did not have close contact with Zeke.
• Zeke and Linda had a close relationship for 30 years and lived together as “lifetime companions.” Zeke also loved Linda’s children including Ryan to whom Zeke loaned or gifted hundreds of thousands of dollars.
• The 2010 Will leaving everything to Linda was drafted by Zeke’s lawyer with all the formalities required by law.
• The evidence showed Zeke was in good health in 2010 when he signed the Will.
• Linda had been employed by Zeke’s dental practice and also helped Zeke with his cattle business.
• Neither the brothers nor their witnesses had any real knowledge of any of the circumstances surrounding the execution of the 2010 Will.

On appeal, William seemed to rely heavily upon the fact that Zeke had gifted or loaned Linda’s son, Ryan, approximately $300,00 over time. Linda testified that she told Zeke he could stop loaning money to Ryan but Zeke was adamant that he was going to help Ryan. In that regard, the Court of Appeals stated:

Here, there was evidence showing that Linda had some influence over Zeke in light of Zeke’s loans or gifts to Ryan, conflicting testimony about statements Zeke made after the 2010 will regarding who he wished to leave his estate  *820 to, and testimony that Linda had her “talons” in Zeke. “However, ‘[i]t cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will [of] the one exerting the influence.’

Estate of Grogan, supra, *819-20.

The Court of Appeals went on to affirm the trial court’s decision to grant Linda’s no evidence motion for summary judgment. “In order to defeat Linda’s no-evidence summary judgment motion, William was required to introduce evidence showing that Linda’s “undue influence subverted or overpowered the mind of the testator at the time of execution of the instrument.”  Estate of Grogan, supra, *820. Neither the brothers nor their witnesses had knowledge regarding the specific circumstances of the execution of the 2010 Will. “Simply put, William introduced no evidence that Zeke’s mind was subverted or overpowered at the time Zeke executed the 2010 will.”

This case is somewhat unusual in that Linda, the will proponent, was able to prevail on a no evidence motion for summary judgment, since undue influence cases can be supported by circumstantial evidence and are typically fact intensive. However, in light of the contestants strained relationship with their brother, Zeke, and their lack of knowledge regarding the circumstances surrounding the execution of the 2010 Will, it would probably have been very difficult, if not impossible, for them to prevail even if this case had been allowed to proceed to trial before a jury.