August 31, 2011
Authored by: Luke Lantta
Last week, in In re Ward, the Tenth Court of Appeals of Texas (Waco) affirmed a jury verdict that the will of Doris Ward was unenforceable because her husband, Bobby Ward, exerted undue influence over her. So, what does a textbook case of undue influence look like? Well, it usually starts with remarriage.
When Doris and Bobby got married both had children from previous marriages. They never ended up having children together. Doris’ daughter, Dwana, moved from Arkansas to Cleburne, Texas, to help take care of Doris. Doris was eventually hospitalized for various medical issues and shortly thereafter Doris was transferred to a nursing home.
After Doris’ death, Bobby filed an application to probate Doris’ will, which left all of her real property to Bobby, including a 77-acre tract of land that Doris had inherited from her parents. One problem – Dwana claimed that Doris had conveyed to her the 77-acres in a deed that was mysteriously destroyed after it had been delivered.
The case went to a jury and Bobby lost. Bobby appealed claiming that the evidence supporting the jury’s conclusion that he exerted undue influence was legally and factually insufficient. The evidence that was presented, however, included the following:
- The Texas Department of Family and Protective Services issued a report regarding allegations that Bobby abused or medically neglected Doris. Initially, the Department found that Bobby medically neglected Doris but then changed its finding to “unable to determine” based solely on additional statements by Bobby.
- Doris’ medical records from the nursing home repeatedly referenced Doris’ expressed fear of Bobby and the nurses’ unfavorable perceptions of Bobby.
- Doris’ medical records from the nursing home referred to an instance in which “husband here again hovering over [Doris][,] telling [Doris] that he has to sell the farm because she won’t come home with him[.]”
- Bobby may have tried to take Doris out of the nursing home to avoid having her interviewed by adult protective services.
- Testimony that Doris was in bad health and unable to read at the time the will was signed.
- On each occasion Doris met with the estate planning attorney, Bobby was present. Doris never met alone with the attorney.
- Testimony from several people that Doris intended for Dwana to receive the property.
The only evidence at trial that supported Bobby’s portrayal of himself as a loving and caring husband who tended to Doris’ needs was his own testimony.
Based on the evidence, it seems like the jury had a pretty easy job.
While the evidence at trial appeared bad for Bobby, this case highlights the power of the medical records and, in particular, nurse’s notes. Absent the nurse’s notes, most of the evidence would have just been Bobby’s word against Dwana’s word. Bobby had tried to have the nurse’s records thrown out as hearsay, but Bobby failed to properly raise the hearsay objection to the nurse’s notes in the trial court. His attorney made a blanket hearsay objection, which was insufficient. That procedural mistake may well have cost Bobby the 77 acres.