## Facts

- Doris Irene Ward and Bobby Ward were married and had no children together; each had adult children from prior marriages.
- Doris’s daughter, Dwana Phillips, claimed a close relationship with Doris and was involved in Doris’s care as Doris’s health declined.
- Doris independently owned a 77-acre tract of real property known as the “family farm.”
- Before Doris and Bobby went to Europe on vacation, Dwana contended Doris signed a written instrument conveying the family farm to Dwana and delivered it to her.
- The purported deed was not available at trial because it was later destroyed after Doris and Bobby returned from Europe.
- After Doris died, Bobby applied to probate Doris’s will. The probated will left Doris’s property, including the family farm, to Bobby, and Bobby was appointed executor.
- Dwana filed suit seeking (1) a declaration of her rights in the family farm based on the alleged deed and (2) to set aside the will on the ground that Bobby procured it through undue influence.
- The case was tried to a jury. The jury found that (1) Doris signed and delivered a deed conveying the family farm to Dwana and (2) Bobby exerted undue influence over Doris in connection with the will’s execution.
- The trial court rendered judgment for Dwana, refused probate of the challenged will, and awarded Dwana attorney’s fees under the Texas Uniform Declaratory Judgments Act (UDJA). Bobby appealed.

## Issues

1. Whether legally and factually sufficient evidence supported the jury’s finding that Doris signed and delivered a deed conveying the family farm to Dwana even though the deed was lost or destroyed.
2. Whether legally and factually sufficient evidence supported the jury’s finding that Bobby exerted undue influence over Doris in the execution of the will.
3. Whether the trial court abused its discretion by awarding Dwana attorney’s fees under the UDJA.

## Decision

- The court of appeals affirmed the judgment.
- The evidence was sufficient for the jury to find the existence, material terms, and delivery of a deed conveying the family farm to Dwana despite the deed’s destruction.
- The evidence was sufficient for the jury to find undue influence under Texas’s three-part test, and the appellate court deferred to the jury’s resolution of conflicts and credibility.
- The court affirmed the UDJA attorney’s fee award, holding the declaratory-judgment claim supported fees and the record supported the amount awarded.

## Legal Principles

- A lost or destroyed deed may be proved by parol and circumstantial evidence if the evidence supports that the deed was executed, identifies its material terms, and shows delivery.
- Delivery turns on the grantor’s intent that the instrument become effective as a present conveyance; intent may be shown by words, conduct, and surrounding circumstances.
- Once a deed has been validly delivered, later loss or destruction of the paper does not by itself revoke the completed transfer of title.
- Undue influence in a Texas will contest requires proof that (1) an influence existed and was exerted, (2) the influence overpowered the testator’s mind at the time the will was executed, and (3) the will would not have been made but for the influence.
- Undue influence may be proved by direct or circumstantial evidence, including the testator’s condition, the relationship between the parties, and the opportunities for exerting influence.
- On legal sufficiency review, the appellate court considers evidence supporting the finding and reasonable inferences; on factual sufficiency review, it weighs all the evidence but does not substitute its judgment for the jury’s credibility calls.
- Under the Texas UDJA, a trial court may award reasonable and necessary attorney’s fees that are equitable and just; the award is reviewed for abuse of discretion.

## Conclusion

The court of appeals upheld a judgment awarding the family farm to the decedent’s daughter based on the jury’s finding that the decedent executed and delivered a deed later destroyed, upheld the jury’s finding that the surviving spouse procured the later will by undue influence, and affirmed an attorney’s fee award tied to the declaratory-judgment claim.


In re Estate of Ward, 2011 WL 3720829 (2011)