### In The C ou rt o f A p p ea ls Si x t h Appe l l at e Di st r i c t o f Te x as a t Te x ar ka na

______________________________ No . 0 6- 09 -0 00 40 -C V

______________________________

I N RE: ESTATE OF E VEL YN MARI E RENO, DECEASED

On Appea l from the County Court at L aw Har rison County , Texas Tr ia l Co ur

t N o. 20 08 -1 5, 77 8- CCL

B e f o r e M o r r i s s , C
. J. , C a

rt e r an d M o s e l e y , JJ. Memorandum Opinion by J ustice Carte rAfter the 2001 Will and the Codicil, Reno dra fted a nother holog raphic will dated June 14, 1 2004 (“2004 Will”) and a handwr itten c odicil dated Marc h 9, 2005 (“2005 Codicil”) . The provisions of the 2004 Will and 2005 Codicil are simil ar to those of the 2001 Will and Codicil. There is no evidenc e in the re cord that either the 2004 Will or the 2005 Codicil were submitted for probate
. 2 MEMORANDUM OPI

NI ON I. F actual and Proc edural History Evely n Marie Re no, a re sident of Hallsville, Har rison County , Texas, d ie d

F e b r u a r y 11, 2008, in L o n g v ie w , G r e g g Co u n ty , T e xa s , a t t h e a g e o f e igh ty
- o n e . Re n o w a s ma r r ie d tw ic e . Sh e h ad three children f

rom her f irst marriag e, Donnie F ree man, Donald Way ne B rown, a

nd Bonnie Tappa

n. Fr eema n and B rown are appellee s here in. Appellant, J an L eGr and, is the sole surviving c hild of the second ma

rriag e. Af te r R e no ’s de a th, a

ho logra ph ic wi ll, da

te d D e c e mbe r 1 9, 20 01 (“ 20 01 Will” ) a nd a c od ic il dated F ebrua

ry 21, 2002 (“Codicil”) , wer e ad m itted for probate. L eGr and soug ht to set aside the ord er pro batin g the 20 01 Will a nd the Cod ic il, and

sh e a lso fi le d a

n a pp lic a tio n to pr ob a te a

wi ll dated Apr il 20, 2007 (“2 0 0 7 Wil l”). F ree man and B rown a lleg ed that Reno lac ked testame ntary capa city to execute t he 2007 Wil l and that the 2007 Will was the pr oduct of undue influence
. The 1 trial court denied L eGr and’s application to set aside the 2001 Will and Codicil and held that Reno was incompe tent to execute the 2007 W i l l and that the 2007 Will was the product of undue influence
.3

L eGr and conte nds that there is insufficient evidence to support the trial cour t’s finding s that 1) Reno did not have the testamentar y capa city to execute the 2007 Will, and 2) the 2007 Wil l was the produc t of undue influenc e. We sustain L eGr and’s first point of err or bec ause the re is fa ctually insufficient e vidence that Reno did not have testame ntary capa city at the time she e x ecute d the 2007 Will
. Ho weve r, we aff irm the trial cour

t’s order denying L eGr and’s a

pplication to pr obate the 2007 Wil l be cause there is sufficient evide nce suppor ting the tr ial court’s f

inding of undue influenc e. II. Te st am e nt ar y C apa c it y t o Ex e c ut e th e 20 07 Wil l I n h e r f ir st p oint, L e Gr and

argue s th a t th e e vid e nc e is l e g a lly and fact ual ly ins uf fi c ie nt t o support the trial court’s finding that Reno lacke d testamentar y capa city at the time the 2007 Will was executed. We find that the e vidence supporting the judgme nt was fa ctually insufficient. A . St a nd a r d o f R e v ie w Whe n r e vie wi nga

le g a l su ff ic ie nc y c ha lle ng e , w e re vie w the e vid e nc e in t he lig ht f a vo ra ble to the verdic t, cr ed i ting f avora ble evidenc e if re asonable jurors could a nd disreg ardingcontra

ry evidenc e unless re asonable jurors could not. In re Estate of W ilson , 252 S.W .3d 7 0 8 , 7 1 3 ( T e x. App.—Texarkana 2008, no pet.) (c iting City of Keller v. W ilson , 168 S.W .3d 802, 827 (Tex. 2005)). We may overr

ule t he trial court’s ruling only if the evide nce c onclusively establishes, as a

matter of law, that Reno ha d capa city
. Se e Do w Che m. Co. v . F ra nc is , 46 S.W .3d 237, 241 (Tex. 2001). The test is whether the evidenc e at t ri al wo u l d enable rea sonable a nd fair- minded people to re ach the4

verdic t under re view. City of Keller , 168 S.W .3d at 827. I n revie wing L eGr and’s leg al suffic iency
c ha lle ng e to t

he tr ia l c ourt ’s fi nd in g o f lack o f c a pa c ity to e xec ute the 20 07 Will, we wi ll s us ta in
a pp e lla nts ’ c omp la int

if the re c or d re ve a ls (1 ) the c omp le te a bs e nc e of a vit a l f a c t; ( 2) the c ourt

is barr ed by rules of la

w or e vidence from g iving we ight to the only evidenc e off ere d to prove a

vital fac t; (3) the evide nce of

fer ed to prove a vital fa ct is no more than a mere scintilla; or (4) the e vidence conclus i v el y es t ab l i shes the opposite of the vital f act. See id . at 810. More tha n a scintilla of
e vid e nc e e xists if

the e vid e nc e ri se s to a

le ve l th a t w ou ld e na

ble re a so na

ble and fa ir -m ind e d p e op le to differ in their conc lusions. Ford Motor Co. v. Ridgway , 135 S.W .3d 598, 601 (Tex. 2004). For a fa ctual suff

iciency challeng e, we mu s t co n s i d er and we igh a ll the evidence in the
rec ord, both supporting and ag ainst the finding , to decide w h et her the verdic t should be set aside. Dow Chem. Co. , 4 6 S. W.3 d at 24 2. I n re vie wi nga pp e lla nt’ s f a c tua l su ff

ic ie nc y c ha lle ng e , w e wi ll set aside the judgme nt only if the finding is so ag ainst the g reat w eig ht a nd prep o n d er an ce o f t he evidenc e as to be clea

rly wrongand manife stly

unjust. Id .; Cai n v . B ain , 7 0 9 S. W. 2 d 1 7 5 , 1 7 6 ( T e x. 1986). B. P roof Required f or Testam entary C apacity L eGr and, as the proponent of the 2007 Wil l, has the bu rd en o f proving Reno had te s ta me n ta r y c a p a c it y a t t h e ti me s h e e xe c u te d

th e 2 0 0 7 Wi ll. See Crouche r v. Croucher , 660 S.W. 2d 55 , 57 ( Te x. 19 83 ); Long v. Long , 196 S.W .3d 460, 464 (Tex. App.—Dallas 2006, no pe t.).

“ Te sta me nta ry c a pa c ity” me ans suffi cie nt m e nta l a bil ity , at th e tim e of

e xec uti on

of the wi ll, to5

understand the business in which the testator is eng ag ed, the e ffe ct of his or he r ac t in making the will, and the g ener al nature and extent of his or her pr operty
. In reNevill e , 67 S.W .3d 522, 524 (T e x. Ap p. —T e xar

ka na 20 02 , n o p e t.) ; see Long , 1 96 S.W. 3d a t 46 4; In r e E

s tate of Grimm , 180 S.W .3d 602, 605 (Tex. App.—Eastland 2005, no pet.) . The testator must be able to know his or he r next of kin and the natural o bjects of his or he r bounty , and the testator must have a suf ficient memory to collect in his or her

mind the elements of the busine ss to be transac ted and to hold them lon g e no ug h to a t le a st p e rc e ive the ir ob vio us re latio n to e a c h o the r a nd be a ble to fo rm

a re a so na ble j u d gm ent about them. Id .; In re Estate of Je rnigan , 7 9 3 S. W. 2 d 8 8 , 8 9 ( T e x. Ap p . — T e xar k ana 1990, no writ). I n a will contest on the g round of testamentary incapa city , the proper i nquiry is the condition of the testator ’s mind on the day the will was executed. In re Estate of Trawick , 170 S.W .3d 871, 87 7 ( Te x. Ap p. —T e xar

ka na 20 05 , no pe t.) . T he c ourt ’s fi nd ingon the iss ue of

te sta me nta ry c a pa c ity may be based on e vidence of the testator ’s mental condition on the date of execution or on evide nce of the testator’s mental soundness bef ore a nd afte r the date of the w ill’s signing
. Ne v ill e , 67 S.W .3d at 5 2 5 (c i t i n g Croucher , 6 60 S.W. 2d a t 55 ; Carr v. Radkey , 393 S.W .2d 806 (Tex. 1965)). Howeve r, evidenc e of incompetenc y at other times only has probative forc e if that e vidence de mon str a te s th a t th e te stator ’s pr e vio us or su bs e qu e nt c on dit ion

pe rs ist s and

“ ha s so me pr ob a

bil ity of being the same condition which obtained at the time of the wills [ sic] making . . . .” Trawi ck, 170 S.W .3d at 876 (quoting Lee v. Lee , 424 S.W .2d 609, 611 (Tex. 1968)).6

C. Evid ence of Testam entary C apacity There is evidence that Reno was not a lway s aler t a nd was at times confused a nd forg etful on
cer tain day s befor e and a fter the 2007 Wil l was executed. In J anuar y 2007, a socia l service assessment history

stated that Reno wa s “Aler t as to self. Place , time and situation is off most of the time. L ong -term memor

y appea rs intact, but short-term defic its a nd confusion and for g etfulness.” Migue l Repress, the direc tor of phy sical t hera py at t he He ritag e Nur sing H ome wher e Reno re sided at the time of e x ecution of the 2007 Wil l, testified t hat R eno had “some cog nitive deficits” a nd, at times, was “incohe rent” or did not understand who h e wa s , wh o she wa s, or what wa s g oing on. Memory Pa r

k e r , a h o s p ic e L V

N , v is it e d

Re n o a t l e a s t t

w ic e e v e r y w e e k f r o m S e p te mb e r

2 0 06 throug h the summer of 2 0 0 7
. P ar ker a dmitted there we re times whe n Reno was “ not very aler t.” Re pr e ss a g re e d

wi th a so c ia l se rv ic e s’ a sse ssm e nt t hat in Ap ri l 20 07 , Re no ’s “ me nta l f un c tio n v ari e s, some day s appea

rs to be lucid, other s sever ely impaired—poor judg ment and dec ision making ability .” But a s to he r condition on the day the will was executed, Repr ess testified Reno wa s coher ent
and wa s “ c oh e re nt a

t th e tim e of

thi s Wil l si g nin g .” He te sti fi e d Re no a pp e are d to be lis te nin g to what wa s g oing on, unde rstood she was signing a will , and was not confuse d at any time during the signingproce ss. Kathy Hay es (Hunt) was the nota ry public wh o notarized the sig nature s of Reno and the witnesses on the 2007 Will. Here, Ha y es sca nned throug h the wil l h er s el f an d rea d that L eGr and7

would g et all the prope rty on Reno’s death. Hay es did not rea d the will to Reno, but, with L eGr and outside the room, Hayes re viewed pa rts of the will with Reno and spoke w ith her to ensure she (Reno) kne w what she was signing and what was in the will. Hayes testified that Reno kne w “that [ Ha y es ] wa s go i n g t o b e w i t n e s s i n g [ R e n o ’s ] s i gn at u re o na W i l l ” a n d “t h at J an wa s t o m an age
ev e r y th in g , y o u kn o w , a f

te r [R e n o ] d ie s , ma

n a g e - - b e a h u n dr e d p e r c e n t r e s p o n s ib le and g et any
e xtra stu ff tha t - - a ft e r e ve ry

thi ngis p a id. ” Re pr e ss wa s pre se nt wh e n Hay e s re vie we d th e wi ll w ith Reno. On cr oss-examination, Hay es admitted she was unaware that Reno suffe red f rom confusion, anxiety , or depr ession, or that Reno wa s regularly taking pain medication. Ha y e s te sti fi e d th a t sh e ha s n ota ri zed nume ro us wi lls in the pa st a nd that if a te stator is confuse d, cannot sign t h e d o cu m en t, or does not know what he or she is talkingabout when she (Ha y es) ex plains the wil l to them, Hay es will ref use to notarize it and will advise the fa mily to ge t
a g uardia n appointed over the testator. I n this c ase, throug hout the will e x ecuti o n p ro ce s s , Reno
never beca me incoher ent or disoriente d, and Ha y es neve r had to re direc t Reno’s attention. Ba sed on Hay es’ obse rvations and c onversation with R eno, Ha y es believe d Re n o u

n d e r s tood the provisions of the 2007 Will. Parker was a n L VN that visited Reno throug h hospice. For sever al months before and af ter the e xec uti on

of the 20 07 Will, Park e r v isi te d Re no a t le a st tw ic e a we e k, bo th in he r ho me and in the nursinghome. Reno’s primar y health proble ms during t h i s p eriod were pa in control and respiratory

issues. Parker

admitted there wer e times when Reno was “not very aler t”; howeve r, she8

believed Re no was a lway s awa re of wher e she w as and what was g oing on. Nursing home re cords indicated that at times, Reno refuse d to be turned, threw the aides out of her r oom, complained about the food be ing c old, and re fused to g o to p h y s i cal therapy . Parker descr ibed Reno as a

“ver y str on g -w ill e d” wo man, wi th a m ind of he r o wn , w ho wo uld

no t do so me thi ngsh e did no t w ant t o do. Parker admitted that she and the hospice car eg ivers “babie d” Reno and that Reno did not like the level of

car e she r ece ived from the nur sing home
. Reno specif

ically told Parker a

bout her fina l wishes, i n cl uding ve ry small details about funer al ar range m en t s , what she w anted sa id, the pastor she w anted ther e, and the color of he r
ear ring s, ring , and dre ss. Parker visited Reno the day befor e the 2007 Wil l was executed, a nd Parker descr ibed Reno’s c ondition as “fair ly well that day .” Parke r t es t i fi ed t hat at that time, she kne w Reno was “ revie wing her Will.” Another visit occur red thre e day s after

the will was executed, and Parker descr ibed Reno as “ high spirited . . . very upbeat, very chee rful, one of

those day s when she felt she c ould conquer

the world.” Fr om he r fre quent and regular c ontact with Reno, Parke r believe d Reno understood: 1) he r own pe rsonal fina nce and bus iness dealing s; 2) what property she owne d and what property

she still maintained at that time; a nd 3) who her relatives and next of kin were
. Way ne McK ay , a hospice chapla in, visited Reno at least once ever y wee k from August 2006 thr ou g h th e summe r o f 2 00 7. I n a dd iti on to p ra yingwi th R e no and

pr ov idi ngsc ri ptu

re and c ouns e l, they conver sed about local and world events, horses, dog s, and family
. He descr ibed Reno as “ve ry st ra i gh t forwa

rd,” someone who neve r held ba ck what she was f eelingor what she thoug ht ofMcKa y testified that his written notation of a “ g ood visit” meant that “e very thing wa s okay 2 to [ him.] ” Testimony

and Reno’s me dical re cords indicate that on or about the time she executed the 3 2007 Wil l, Reno suffe red f rom anxiety

and depr ession and wa s taking or wa s presc ribed va rious medications, including Norc o, Xanax , and Morphine. H oweve r, there is no testimo ny or other 9 something, a

nd someone who would bluntly express what she thought of someone e lse, including he r n ur sin g ho me c are g ive rs and he r fa mil y . Re no tol d h im the re wa s d isc or d amon g st h e r f a mil y members. When asked a

bout Reno’s memory , McKa y testified that Reno regularly worke d crosswor d pu zzle s a nd wa s a ble to re me mbe r ev e nts of the pa st mon th, his pr ior vis its , a s w e ll a s th os e vis its he mis se d. On

the da y be fo re the e xec uti on

of the 20 07 Will, Mc Ka

y vis ite d Re no and

did no t no te any thing wr ong with her, instead noting that it was a “g ood visit in prayer.” During the spring of 2 2007, he believe d Reno had the a bility to “know and unde rstand her persona l finance s, her pe rsonal business, [and] that she could compre hend and understand what [property ] she had and didn' t have.” Mc Ka y “ ne ve r ha d any qu e sti on a bo ut” Re no ’s me nta l ca

pa c ity , an d saw he r as “ a lw ay s, Itho ug ht, very aler t and sharp.” He could only rec all one “ve ry

rar e” instanc e whe re he had to re orient Reno to the proper

time or place
. D. Analysis of

the Evidence of Testam entary C apacity Her e, all the direc t evidenc e reg arding Reno’s m ental capac ity on the day the 2007 Will was executed indicate s Reno had suff icient testamenta

ry capa city to unders t an d an d execute the 2007 Wil l. There is no evidence she wa s confuse d or i ncapa citated in any way on that day
. Throug hout 3evidenc e of what direc t effe cts or side eff ects, if any , the conditions a nd medications would have on Reno’s mental c apac ity

on the day

she executed the 2007 Wil l. Mc Ka y te sti fi e d to on ly on e ins tanc e wh e re he ha d to re or ie nt R e no . T his oc c ur re d s ome 4 tim e a ft e r t

he e xec uti on of the 20 07 Will. Park e r te sti fi e d that Re no ’s me mor y sta rt e d to de c lin e in J une, J uly , Aug ust, a

nd September of 2007 (af

ter the 2007 Wil l e x ecution), wher e she had inc rea sing short-term memor

y problems. 10 the last y ear

of Reno’s life , Parker an d M cK ay visited her seve ral times eve ry wee k, and they testified that Reno’s e pisodes of confu s i o n were ra re a nd that she routinely

had suff

icient testamentar

y capa city
. There is e vidence that Reno lacke d full capa city at times be fore an d af t er 4 the 2007 Will was e x ecute d; however , t h er e i s littl e probative evidenc e that her incapa citating condition persisted on the da y the 2007 Will was e x ecute d. Ba sed on Reno’s pr evious day s of conf usion and disorientation, there may be a sc intill a of evidenc e of he r inca

pacity , making it lega lly

s u ff i ci en t, but the testimony

of all witnesses who observe d the execution of the will a nd Reno’s condition on the day the will was sig ned wa s that she had the r equisite testamentar y capa city to execute the will on the date she signe d it. Theref ore, the fi nd ingthat Re no la c ke d tes tame nta ry c a pa c ity is so ag a ins t th e g re a t w e ig ht o f t he e vid e nc e a s to be cle arly wrongand unjust. The evide nce suppor ting the finding is f

actua lly insufficient, a

nd we sustain L eGr and’s f

irst point of error
.11

III. Undu e Infl uence I n h e r s e c on d p oint of

e rr or , L eGr and

c on te nd s th e e vid e nc e is l e g a lly and fa c tua lly insufficient to support the trial c ourt’s findingthat the 2007 Wil l was the product of undue influenc e. We disag ree . To justify setting as i d e a wi l l beca use of undue influence , a conte stant must prove (1) the exis tence and exertion of an inf luence (2) that subve rted or ove rpowe red the mind of the testator at the time of ex ec u t i o n of the instrument (3) so that the testator e x ecute d an instrument he or she would not otherwise ha

ve executed but for such influenc e. Rothermel v . Duncan , 369 S.W .2d 917, 92 2 ( Te x. 19 63 ); In re Estate of Stee d , 1 52 S.W. 3d 79 7, 80 7 (Te x. Ap p. —T e xar ka na 20 04 , p e t. denied) ; Ma c k

ie v . M c Ke nz ie , 900 S.W .2d 445, 449–50 (Tex. App.—Texarkana 1995, writ denied)
. We m us t be g in w iththe pr op os iti on that a pe rs on of so un d mi nd

ha s a pe rf e c t r ig ht to disp os e of

his
o r h e r p r o p e rty a s h e o r s he wishes. R o t herme l , 369 S.W .2d at 923. Ther efor e, the bur den of proving undue influence is on the party contesting its ex ecution. Id. a t 92 2. To su c c e e d, the pa rt y claiming undue influenc e must introduce some ta ng ible and satisfa cto ry

proof of the exist ence of
eac h of the a

bove stated e lements of undue inf luence
. Scott v. Townsend , 1 0 6 T e x. 3 2 2 , 1 6 6 S. W. 1138 (1914). The Rothermel

decision establishes that the g ener al t opics examined to prove an inf luence was undue are : the relationship exis ting between the testator and the par ties, the opportunities for12

an exertion or dec eption, the circ umstances surr ounding the draf ting a nd execution of the will, the exis tence of a f

raudule nt motive, and any domination of the testator by another
. To prove whether

the testator’ s fre e will wa s subverted or overc ome, we e x amine the tes t at o r’ s mental or phy sical inca pacity to resist or susceptibility to influence . Weakness of mind
or bo dy are re le va

nt i nq uir ie s. Finally , in inquiring if the w ill would not have b ee n ex ec u t ed but for such influe nce, w e revie w whether t h e wi ll as executed wa s unnatural in its disposit ion of proper ty
. Rothermel , 369 S.W .2d at 923. On e may re qu e st, imp or

tun e , or e ntr e a t ano the r to c re a te a fa vo ra ble dis po sit ive ins tr

ume nt, but unless the importuniti es or entre aties are shown to be so excessive as to subve rt the will of the maker , they

will not taint t he validity of the instrument. Id. at 922. Other topics usua lly

examined are the motive, char acte r, and c o n d u ct of the person benef itting from the wil l, the words, and acts of t he parties. Ma c k ie , 9 00 S.W. 2d

a t 44 9; Gree n v. Ea rn est , 840 S.W .2d 119, 122 (Tex. App.—El Paso 1992, writ denied). B e c a us e the e xer

tio n o f u nd ue inf lue nce is us ually

su btl e , a nd by its ve ry natur e us ua lly involve s an ex t ended course of dealing s, contac ts, and circ umstances, undue influence may be proven by

direc t and circ umstantial evidence
. Rothermel , 369 S.W
. 2 d at 922. I n the abse nce of direc t evidence , we should consider all of t he circumstance s shown or established by the evidenc e. Id. Ev e n th ou g h n on e of

the c ir c ums tanc e s st and inga lon e wo uld be su ff ic ie nt to sa tis fy

the e le me nts13

of undue influe nce, if

when c onsidered tog ether the circ umstances produce a rea sonable be lief that an influenc e wa s exerted that subverted or overpow ere d the mind of the testator and r esulted in the execution of the testament in contr overs y , t he evide nce is suff icient to sustain such conc lusion. Barksdale v . Dobbins , 141 S
. W
. 2 d 1 0 3 5 (T ex. C iv. App. 1940, writ ref ’d). A sole mn testament executed under

the forma lities require d by law by one mentally

capa ble of e x ecutingit should not b e s e t a s id e o na

b ar e s u s p ic io no f

w r ong doing. R o thermel , 3 69 S.W. 2d a t 92 2– 23 ; Burgess v. Sylve ster , 143 Tex
. 2 5 , 1 8 2 S.W .2d 358 (1944). The ref ore, the circ umstances r elied on as establishing the elements of undue influence must be “of a rea sonably satisfac tory

and convinc ing char acte r, and the y

must not be equally

consistent wi th the absenc e of the exercise of such influence .” Rothermel , 3 69 S.W. 2d 92 2; Stewart v. Miller , 271 S.W
. 311 (Tex. Civ. App.—W aco 1925, writ ref

’d). A. The Exis tence and E xert ion of an In fl uence 1. The nature of the relationship of Reno an d her children. Reno’s relationship with Free man and Ta ppan wa s strained. In J uly 2006, Fr eema

n and Ta pp an f ile d a g ua rd ians hip a c tio n s e e kin g to h a ve a g ua rd ian ap po int e d ove r Re no . Re no wa s so upset on rec eiving n o t i ce o f t h e guar dianship action that she “ called the police on” T appan a nd
rema ined upset about it well into the fall of 2006, even afte r the g uardia nship a ction was droppe d. Be fore Reno’s plac ement in the nursinghome, Reno lived within walking distance of Ta pp an, but Re no ha d re pe a te dly a c c us e d Ta pp an an d he r ch ild

re n of ste a lin g fr om he r. I n r e sp on se14

to the acc usations, in a letter dated Octobe r 3, 2006 , T ap p an m ade clear that neither she nor her children w ould “set foot on [Reno’s] property ag ain” a nd threat en ed t o fi le har assment cha rg es ag ainst Reno if the ac cusations did not ce as e. Despit e havingvisited Reno freque ntly befor e the incident, Tappa

n did not see Reno ag ain af ter mailing the Octobe r letter. There was a lso long-sta

nding c onflict betwe en the children of Reno’ s first marria g e, B rown, Fr eema n, and Ta ppan, and the child of Reno’s se cond marriag e, L eGr and. Reno was very conce rned about the conf

lict among and betwe en her children. That animosity

conce rned Reno to the point she told Mc Kay about the conflict and even noted it in her 2001 Wil l. Reno never indicated she wa nted to further separ ate the children. The ref ore, the re is evide nce of

conflict be tween L eGr and and the children of

Reno’s first marria g e as well as evidenc e that Reno was upse t with Fre eman a nd Tappa n. This fac tor shows no exertion of undue influenc e.

2. The opp ortunity to exe rt undu e inf luence. Fr om October

2006 until R eno’s d ea t h i n Fe bruar y 2008, L eGr and wa s Reno’s primary visitor, support, and nonprofe ssional car eg iver. L eGr and exercised a g reat de al of control over the healthca re that Reno rec eived, even choosing Reno’s nursing home. Until Oc tober 200 6 , b ef o re enter ing the nursing home, L eGr and and he r half- sister, Tappa n, ensure d Reno’s bills were paid by
wr iti ng c he c ks on Re no ’s a c c ount a nd havin g Re no sig n th e m. A ft e r O c tob e r 2 00 6, L e Gr and wr ote the che cks for

Reno to sign. L eGr and ac knowledg es she wa s the only party in this case that had any contac t with Reno from Octobe r 2006 until Reno’s death in Fe bruar y 2008; she di d not tell Fre eman15

or Tappa n of Reno’s loca

tion during that time and re quested the staf f not to reve al information about her mother. L eGr and testified this was done at her mother’s re quest. For

whateve r re ason, L eGr and had exclusive ac cess to Reno for sever al m o nths and, there fore , an unlimited opportunity to exert influence on Reno.

3. The circum stances of preparation and exec ution of the 2007 Will. L eGr and testified that Reno w an t ed to “make a will” and “to lea

ve eve ry thing to [her].” Reno handwr ote her

two previous wills and their c odicils, but L eGr and dra fted the 2007 Will, which leave s ever

y thing to her , and ar

rang ed for

its ex ecution at t he nursinghome. Multiple witnesses
a tte ste d th a t Re no wa s “ me nta lly c omp e te nt a

nd un de r n o c on str ain t or

un du e inf

lue nc e .” With L eGr and out of the room, Hay es discussed the 2007 Wil l w ith Reno and presided over its execution. L eGr and cites our

decision in Steed , 152 S.W .3d at 809, for he r arg ument that “eve n the exist ence of so me c on tr oll inginf

lue nc e by [he r] ove r [Ren o] is no t suf fi c ie nt t o inva lid a te the 20 07 wi ll unle ss the i nfluenc e wa s specific ally exerted on the testame ntary act.” I n Steed , there was some e vidence that the testator persona lly draf ted a hologr aphic will in order to pa cify his wife, who wa s acc used of undue influe nce. Id. a t 80 7– 08 , 8 11 . A ll the e vid e nc e ind ic a te d that the te stator dr a ft e d th e wi ll “alone ,” while his wife was in a diff ere nt city
. Id. at 809. Her e, L eGr and wr ote the wil l and had constant conta ct with the testator, Reno. The fac ts that L eGr and prepa red the 2007 Will and that she had consta

nt contact with Re no at the time the 2007 Wil l w as prepa red and executed mar

kedly differ from the f acts pre sent in Steed , and, ther efor e, Steed is disti ng uishable.16

Whil e L eGr and did not phy sically cause Reno to sign the w ill, she did personally prepa re the will for Reno. A wi l l m ay n o t be executed until someone pre pare s it; one element of the consummation of a wi l l is the phy sical pre paration of the will that is si g ned by the testator. Testimony

of the “ making of the testame nt itself” may provide e vidence of exertion of an undue influence
. Rothermel , 369 S.W .2d at 923. Whil e the p h y s ic a l e xe c u ti o no f th e w il l s h o w s n o u n d

u e in f lu e n c e , th e f

a c t t h a t L eGr and pe rs on a lly

pr e pa re d th e wi ll w ith out th e int e rv e nti on of an att or ne y or oth e r t hir d p art y is s ig nif ic ant. Boye r v. Pool , 154 Tex. 586, 280 S .W.2d 564, 566 (1955) (“Proof of the planning and pre paration of th e will, wh e re the wi tne sse s are a va ila ble , is the he art

of an und ue inf lue nc e c a se .” ). Th is important fac t is ex tremely persua sive in finding the exertion of influence by L eGr and. 4. Reno's depend ency on LeG rand. Reno was in declining mental and phy sical health for more than the last two y ear s of her life. Be fore Ren o en tere d the nursinghome, L eGr and wa s her pr imary visitor and nonprofe ssional
c are g ive r. Ta

pp an and L e Gr and of

te n wr ote c he c ks on Re no ’s a c c ount in or de r to g e t Re no ’s bil ls pa id. Whe n L e Gr and

pla c e d Re no int o th e nurs ingho me , s he did no t noti fy any ot he r f

a mil y members, a

nd direc ted the nursing home not to rele ase any information about Reno beinga re sident there
. Reno ’ s b e s t f

r ie n d an d h a lf

- s is te r b o th v is it e d Re n o in th e nu r s in g h o me , an d

L e G r and instructed both of them to keep her location a secret. L eGr and testified that withholding information17

about Reno’s whe rea

bouts was Reno’s de cision. This f actor weig hs in f

avor of the finding of undue influence
. When taken tog ether , these fa cts support the findingof an e x istence a nd exertion of an influence by

L eGr and over

Reno. The pr oof m ust also show that the influenc e oper ated to subver t
or over power the testator’ s mind. B. Subve r t o r Ove r powe r Re no’ s M ind

— Sus ceptibility to Inf luence An important fac tor in deter mining if the t estator’ s will was overcome is the te stator’s mental and phy sical condition and the susc eptibility of t he testator to an undue inf luence
. Rothermel , 369 S.W .2d at 923. At the time the 2007 Will was ex ec u t ed , R eno was in a somewhat we akene d phy sical and me ntal condition—she was e ighty y ear s old, resided in a nur sing home , under hospice
car e, and suf

fer ed fr om occa sional epis odes of menta l disorientation and conf usion. Howeve r, as previously

noted in this opini on, the direc t evidence from the notar y and witnesses pr es en t on the d ay t h e 2 0 0 7 W i l l w a s e x e c ut e d u n i f o r m l y i n d i c a t e t h a t R e n o h a d s u f f i c i e n tt e s t a m e n t ar

y c a p a c i t y. L eGr and testified that most of the time Reno “wa s rig ht the re w ith y ou” mentally , but in the fall of 2006, whe n she aske d Reno about makinga wil l , Reno would mentally “shut down” f

or a couple of d ay s . I n contra st, L eGr and, McK ay , and Parke r all testified that Reno wa s very str a ig htf or wa rd and wa s a lw ay s a

ble t o tel l y ou wh a t sh e wa nte d a nd ha d s uf fi c ie nt c a pa c ity to understand a

nd execute the 2007 Will.18

Whil e we have he ld that the evidenc e does not su p p o rt a fi nding that Reno lacke d the testamentar

y capa city to execute the wi l l , the fa cts demonstrate that she wa s in a wea kened
c on dit ion , s ub

je c t to ho sp ic e c are , a

nd a t ti me s w a s no t fu lly c og niza nt of a ll e ve nts
. We f

ind thi s evidenc e is some circ umstantial evidence of a susc eptibility to an undue influe nce. C. Execution of

a Will S he Would Not Other wi se Have Exec uted The most important fac tor in determining if the wil l was one the t estator otherwise would not have e x ecute d is the unnatural disposition. Id. He re , th e 20 01 Will, the 20 02 Cod ic il, the 20 04 Will, and the 2005 Codicil made nume rous spec ific bequests and devises to e ach of Reno’s four children,
eac h of her

thirteen g randc hildren, as we ll as hospitals, a ch u rc h , and pastor. H oweve r, the 2007 Will e f f e c ti v e ly le av e s a ll o f Re n o ’ s p r o p e rty to L e G r an d
. A p e r s o n o f s o u n d mi n d has a pe rfe ct le g a l r ig ht t o d isp os e of hi s o r h e r p ro pe rt y a s h e or sh e wi sh e s, and

the 20 07 Will m a ke s a dispositi on of the prope rty wher e one c hild is prefer red ove r the other c hildren and g randc hildren. But whe re a

rea sonable e x planation for suc h unn at u ra l d ispositi on is present, a n unnatura l dispositi on is understanda ble. Mc Ke nz ie , 9 0 0 S
. W
. 2 d

at 4 5 0 (c i t i n g Rothermel , 369 S.W .2d at 924). Her e, ther e is evidenc e that one da ug hter ha d sever ed all ti es wit h Reno and that R eno wa s upset at the attempt to obtain a guar dianship. Whil e one may decide to chang e his or her will without undue influence , the fa ct is that L eG rand prepar ed this self-se rving will. W hile we do not find that the dis po sit ion

of Re no ’s pr op e rt

y by thi s wi ll is unnatur a l, in lig ht of the anim os ity wi th so me fa mil y
me mbe rs , it

is c omp le te ly

dif fe rent fro m pr e vio us wi lls in t he se ns e that c e rt a in o the r f a mil y19

me mbe rs and

c ha ri tie s to wh om sh e ha d pr e vio us ly de vis e d pr op e rt y we re c omp le te ly

omi tte d. Th is fa c tor a lon e do e s not sh ow an un du e inf lue nc e , b ut i s o nly

on e of the many fa c ts that c omb ine to allow the trial c ourt to rea ch such a co n cl u s i o n . See Cobb v. Justice , 9 5 4 S. W. 2 d 1 6 2 , 1 6 6 ( T e x. App.—Waco 1997, pet. de nied). When viewed in lig ht of the applica ble law, the e vidence supporting the trial court’s f inding of undu e i nfluenc e is more than a scintilla and such findingis not ag ainst the g reat weig ht of the evidenc e in this case. T here fore , there is leg ally and factually sufficie nt evidenc e to support the trial court’s f inding of undue influenc e. Since we uphold the tr ial court’s c onclusion that the 2007 Will was produc ed as a result of an undue inf

luence , we a ffirm the judg ment of the trial c ourt.

J ack Ca rter J ustice Date Submitted: November 3, 2009 Date D ecide d: Dec ember 18, 2009