Tuesday, March 12, 2013

Lipper v. Weslow case brief

Lipper v. Weslow case brief summary
369 S.W.2d 698

PROCEDURAL POSTURE: Appellants, the executor of his mother's will and his sister, sought review of an order of the trial court (Texas) that entered judgment on the verdict and set aside decedent's will, in appellee contestants' action against appellants alleging undue influence in the creation of the will.

OVERVIEW: The decedent's will disinherited appellee contestants and gave a larger share to appellant executor, decedent's son, than he would have received had appellees not been disinherited. Appellees brought an action against appellants, the executor and his sister, alleging that the will was the result of undue influence. A jury found undue influence and the trial court set aside the will. Appellants sought review.

The court reversed the order and rendered judgment for appellants. The issue presented was whether there was any evidence of undue influence. The test of undue influence was whether such control was exercised over the mind of the decedent as to overcome her free agency and free will and to substitute the will of another so as to cause her to do what she would not otherwise have done but for such control.

The evidence showed that decedent told witnesses her reasons for disinheriting appellees, the will itself explained her reason, and she was of sound mind. While appellees did establish a confidential relationship and an opportunity for undue influence by appellant executor, they failed to prove that the will resulted from his substituting his mind and will for the decedent's.

OUTCOME: In appellee contestants' action challenging the decedent's will, the court reversed the order of the trial court that held that the will was procured by undue influence on the part of appellant executor. Appellees failed to provide evidence that the will was the result of appellant substituting his mind and will for that of the decedent. Judgment was rendered for appellants, the executor and his sister.

Lipper v. Weslow (Tex. Ct. App. 1963) [23 CB 162]: Testator has 4 grandchildren from deceased son from first marriage and two surviving children from third marriage.  Surviving son drafted will executed by testator that explained purpose of will and then specifically disinherited grandchildren.  Rule: Although contestants put on evidence of confidential relationship, they must also show that the confidential relationship enabled son to substitute his preferences for that of testator.  Where testator had mental capacity and told three people afterward of her intentions in the will, contestants fail.
i.    Although there’s confidential relationship, you have to show more
ii.   Evidence in case of testator’s actions show her to be of strong mental intellect and that she knew exactly what she was doing in the will
iii.  Be careful if drafter of will is also beneficiary thereunder – send to indep counsel

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