Lipper v. Weslow
369 S.W.2d 698 (Tex. 1963)


Facts: Mrs. Sophie Block (T) executed a will written by her son, Frank Lipper, a lawyer, 22 days before she died. Lipper bore malice against his deceased half-brother, who was excluded from the will. This resulted in Lipper receiving a larger share under the will than he otherwise would have received. Lipper lived next door to T and had a key to her home. After signing the will, T told one witness that she was leaving her estate to her son and daughter and that her other son, and his children would be excluded because they never showed any attention to her. The will provided a lengthy explanation as to why Julian was excluded from the will largely due to the "unfriendly and distant attitude" T felt had been accorded to her. The children of (Ps) contest the will, charging Frank Lipper and Irene Lipper (Ds) with undue influence. At trial, a jury found that T's will was procured by undue influence.

Issue: Is there any evidence of undue influence present?

Holding: Yes. The Court of Civil Appeals, McDonald, C. J., held that evidence that a lawyer son of testatrix prepared the will on the instruction of testatrix, who did not read it before signing, that son had a key to her house and had borne malice toward the testatrix' deceased son whose children were left nothing in the will was insufficient to sustain a jury finding of undue influence.

Analysis:The contestants have established a confidential relationship, the opportunity, and perhaps a motive for undue influence. However, they must go forward and prove in some fashion that the will as written resulted from D's substituting his mind and will for that of T. Proof of vital facts of undue influence must be provided: the substitution of a plan of testamentary disposition by another as the will of T. Here, the evidence shows that T was of sound mind, of strong will, and in excel¬lent physical condition. A person of sound mind has the legal right to dispose of her property as she wishes, with the burden on those attacking the disposition to prove that it was the product of undue influence. T had a legal right to do what she did whether we think she was justified or not. We conclude that there was no evidence of probative force to support the verdict of the jury.