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

Rule:

The test of undue influence is whether such control was exercised over the mind of the testator as to overcome her free agency and free will and to substitute the will of another so as to cause the testator to do what she would not otherwise have done but for such control. 

Facts:

This is a contest of the will of Mrs. Sophie Block, on the ground of undue influence. Testatrix Block had been married three times. Of her first marriage she had one son, Julian Weslow, (who died in 1949), who was father of plaintiffs, Julian Weslow, Jr., Julia Weslow Fortson and Alice Weslow. After the death of her first husband, testatrix married a Mr. Lipper. Defendants, G. Frank Lipper and Irene Lipper Dover, are the two children of that marriage. After Mr. Lipper's death, testatrix married Max Block. There were no children born of this marriage. Max Block died several months after the death of testatrix. On 30 January, 1956, Sophie Block executed the will in controversy. Such will was prepared by defendant, Frank Lipper, an attorney, one of the beneficiaries of the will, and Independent Executor of the will. The will was witnessed by two former business associates of Mr. Block. Plaintiffs contested the will arguing that that decedent’s will was procured by undue influence on the part of defendant Lipper.

Issue:

Was there any any evidence of undue influence?

Answer:

No

Conclusion:

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.

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