## Facts

- Sophie Block (testatrix) had three grandchildren from her first marriage (the contestants) and two surviving children from her second marriage (the proponents).
- On January 30, 1956, at age 81, Block executed a will about 22 days before her death.
- The will left the bulk of the estate to her two surviving children, G. Frank Lipper and Irene Lipper Dover, and left nothing to the grandchildren.
- Frank Lipper, an attorney, drafted the will, was a principal beneficiary, and was named independent executor.
- The will included provisions addressing debts and small bequests, accounted for prior advancements to Frank and Irene, and canceled prior advances to Block’s deceased son (the grandchildren’s father).
- The will contained an explanation for disinheriting the grandchildren, asserting strained relations and lack of attention from them, and stating that Frank and Irene provided care in Block’s later years.
- Contestants pointed to circumstances suggesting possible influence: Frank’s proximity and access to Block’s home, hostility toward his half-brother, claimed inconsistencies in the will’s recitals, and that the will was not read to Block before execution.
- Proponents presented evidence that Block was mentally competent, strong-willed, physically well, and had expressed the intent to exclude the grandchildren both before and after executing the will.

## Issues

1. Whether there was legally sufficient evidence of probative force to support the jury finding that the will was procured by Frank Lipper’s undue influence.

## Decision

- The appellate court reversed the judgment setting aside the will and rendered judgment for the proponents.
- The court held there was no evidence of probative value that Frank Lipper’s conduct overcame Block’s free agency and substituted his will for hers.
- The court concluded the record showed, at most, suspicious circumstances and opportunity, which are insufficient without proof of actual coercive or dominating influence.

## Legal Principles

- Undue influence requires proof that another’s control over the testator overcame the testator’s free agency and caused a disposition the testator would not otherwise have made.
- The burden of proving undue influence rests on the will contestant.
- Suspicion, motive, a confidential relationship, opportunity, or an “unnatural” disposition does not alone establish undue influence without evidence that the influence was actually exercised to the required degree.
- A competent testator may dispose of property as the testator chooses, including preferring some heirs over others, when the decision reflects the testator’s own settled intent.

## Conclusion

The court upheld the will because the contestants failed to present legally sufficient evidence that the drafting-beneficiary actually dominated the testatrix’s mind or overrode her free will; suspicious facts surrounding execution did not substitute for proof of undue influence.


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