Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the County Court at Law No 2 Randall County,
Texas Trial Court No. 2010-297-P, Honorable Ronald Walker,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
QUINN CHIEF JUSTICE
Frye Jackson and Blake Frye (Jackson and Frye) appeal from a
summary judgment denying their application to set aside an
order probating the will of Margaret Frye (Margaret), their
grandmother. They initiated their effort to avoid the order,
contending that the will resulted from undue influence
exercised upon their grandmother Margaret by their two aunts,
Judy Frye and Patsy Day. So too did they allege that Judy and
Patsy tortiuously interfered with their inheritance rights
and conspired to have them excluded from Margaret's will.
Judy and Patsy moved for summary judgment which the trial
court granted. We affirm as modified.
mentioned, Jackson and Frye were grandchildren of Margaret
and the niece and nephew of Judy and Patsy. Judy and Patsy
also had a brother, Gerald. The latter predeceased Margaret.
And, though Margaret left bequests to Judy and Patsy in her
will, she left nothing to Jackson and Frye despite her
purported comments that she would. This omission allegedly was
due to the efforts of Judy and Patsy to induce Margaret to
change her will when her husband Eugene died. Eugene was also
the father of Judy and Patsy and grandfather of Jackson and
to comments Patsy uttered to Jackson, the motive for
excluding Jackson and Frye from inheriting from Margaret
related to Eugene's alleged dislike for his
daughter-in-law (i.e., the mother of Jackson and
Frye). Patsy would eventually tell her niece that they were
excluded "[b]ecause Daddy did not like your mother,
period . . . and that's what I want." So, "we
cut ya'II out." In a taped phone conversation, Patsy
told Jackson that Margaret's husband asked Margaret to
make the change before he died.
and Patsy entitled their motion as a "No-Evidence Motion
for Summary Judgment" and argued that no evidence
supported the claims averred in the application of Jackson
and Frye. Yet, they also proffered evidence to disprove the
claims of their niece and nephew. Whether they intended to
pursue a traditional or no-evidence motion is unclear.
Furthermore, the particular avenue they intended to pursue
affected the burdens of all the parties. For instance, if
they sought a no-evidence summary judgment, then the
non-movants (i.e., Jackson and Frye) had the burden
to proffer evidence creating a material issue of fact
regarding the elements at issue. Lightning Oil Co. v.
Anadarko E&P Onshore, LLC, S.W.3d, 2017 Tex. LEXIS
463, at *8-9 (Tex. May 19, 2017). If they were pursuing a
traditional motion, then Judy and Patsy had the burden to
illustrate that no material issues of fact existed and that
they were entitled to a judgment as a matter of law.
Id. at *9. Judy and Patsy proceeding as they did,
then, we will treat the summary judgment motion as both a
no-evidence and traditional one. Doing that requires us to
first consider its no-evidence aspect. Id. at *8.
And, in so considering that aspect, we conclude that summary
judgment was warranted on the abbreviated record before us.
claim of undue influence contains several elements. They
consist of 1) the existence and exertion of an influence upon
the testator, 2) that subverted or overpowered his mind at
the time the will was executed, and 3) so that the testator
executed an instrument he would not otherwise have executed
but for such influence. Rothermel v. Duncan, 369
S.W.2d 917, 922 (Tex. 1963); Truitt v. Byars, No.
07-11-00348-CV, 2013 Tex.App. LEXIS 6705, at *24-25 (Tex.
App.-Amarillo May 30, 2013, pet. denied) (mem. op.).
an influence is not "undue" unless it destroys the
testator's free agency resulting in the testament
reflecting not the desires of the decedent but rather those
of the person exerting the influence. Truitt v.
Byars, 2013 Tex.App. LEXIS 6705, at *25. In other words,
requesting or entreating another to execute a favorable
dispositive instrument fails to evince undue influence;
rather, the entreaties must be so excessive as to subvert the
will of the maker. Rothermel v. Duncan, 369 S.W.2d
at 922. Thus, the influence exerted, if any, and the
testator's state of mind when subjected to that influence
bear on the question. Id. at 923 (stating that where
evidence indicates the exercise of influence by another,
"the issue as to whether it was effectually exercised
necessarily turns the inquiry and directs it to the state of
the testator's mind at the time of the execution of the
testament, since the question as to whether free agency is
overcome by its very nature comprehends such an
investigation"). Indeed, we have said that "a will
contestant must not only provide evidence that an undue
influence existed, they must also offer evidence of the
testatrix's state of mind at the time the will was
executed that would tend to show her free agency was overcome
by such influence." Truitt v. Byars, 2013
Tex.App. LEXIS 6705, at *25.
other circumstance demands consideration as well. It is the
legal truism that a person of sound mind has the right to
dispose of his property as he wishes. Rothermel v.
Duncan, 369 S.W.2d at 923-24. One may be old, may be
suffering from maladies, may be susceptible to influence, and
may select an unordinary way to dispose of his property, but
the disposition may still be emanating from her own will or
choice. See id. (where the Supreme Court struck down
the finding of undue influence despite evidence of the
testatrix loving both of her grandchildren, informing others
of her desire to leave property to her grandchildren,
suffering from maladies associated with age, being
susceptible to influence and, ultimately, executing a will
denying her grandchildren any property from her estate).
put, the evidence of record fails to create a genuine issue
of fact establishing the exertion of any influence on the
part of Judy or Patsy with regard to the identity of those
who were to be beneficiaries of Margaret's estate. There
is evidence that Judy and Patsy may have informed their
mother of her need to change the will. So too is there
evidence that Judy and or Patsy may have taken their mother
to a lawyer's office within three weeks of Eugene's
death. Frye stated in his deposition that Judy and Patsy
informed Margaret that this was needed because the person
designated as executor of her will (her son Gerald) had died
and that they wanted to be co-executors. Yet, we are cited to
nothing indicating what transpired in the lawyer's
office. Nor were we cited to evidence ...