                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-11-00348-CV
                             ________________________

                         ANNIE COLE TRUITT, APPELLANT

                                           V.

             SUSAN COLE BYARS AND WILLIAM C. COLE, APPELLEES



                           On Appeal from the 46TH District Court
                                  Wilbarger County, Texas
                Trial Court No. 25,629, Honorable Dan Mike Bird, Presiding


                                      May 30, 2013

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Annie Cole Truitt, appeals from the trial court’s judgment admitting the

Last Will and Testament of Mary Faye Cole (“Cole”) dated November 20, 2009 (“2009

will”) to probate. Appellees, Susan Faye Cole Byars and William C. Cole were the

applicants for probate of the 2009 will. Truitt asserts the trial court erred by admitting

the 2009 will to probate rather than Cole’s Last Will and Testament dated September

20, 2010 (“2010 will”) because the evidence was (1) legally and (2) factually insufficient
to establish Cole lacked testamentary capacity to execute the 2010 will; and (3) legally

and (4) factually insufficient to establish Cole was unduly influenced to execute the 2010

will. We affirm.


                                            BACKGROUND


       This is a will contest wherein allegations of lack of testamentary capacity and

undue influence typically stand or fall depending on the sufficiency of the facts

underlying the trial court’s judgment. See Rothermel v. Duncan, 369 S.W.2d 917, 921

(Tex. 1963). In that regard, no two cases are alike. Id. Given the polarity in the parties’

factual contentions, it is necessary to undertake a detailed summation of the evidence

presented during the two day bench trial. 1


       Cole was seventy-eight years old when she passed on October 13, 2010. She

was survived by five children (Susan Faye Cole Byars, William C. Cole, Annie Lee Cole

Truitt, Roy Cole and Thomas Ed Cole), eight grandchildren, and four great-

grandchildren.


       GUARDIANSHIP PROCEEDINGS


       In September 2009, Truitt filed an application for permanent guardianship of Cole

and her estate. In her application, Truitt attested Cole was suffering from Alzheimer’s

disease and was unable to manage her property or financial affairs without a legal

guardian. The application proposed that Truitt be appointed Cole’s permanent legal

1
 In addition to the trial testimony of Susan Faye Byars, Kristi Hyatt, Jay Cantrell, Truitt, Dr. Francis
Anwasi, Ruth Timberlake, Diana Negrete, Crystal Negrete, Marshall Capps, and Stephanie Hord, the
parties stipulated to admission of the deposition transcripts of Terry Donk and Mary King as well as
certain investigative records from Adult Protective Services, a subdivision of the Texas Department of
Family and Protective Services.


                                                   2
guardian with the power to deal with her mother’s finances to the same extent as her

mother could if she were able.              Truitt’s application sought permanent guardianship

because Cole “lack[ed] the capacity to manage her business and financial affairs.” In

that proceeding, the trial court appointed an attorney, Marshall Capps, to represent Cole

as her attorney ad litem.


        Capps visited Cole three to four times after his appointment as attorney ad litem.

According to his testimony, Cole had expressed a desire to get to a point where she

could live free from family strife. In addition to the pending guardianship action, Cole’s

children were previously involved in litigation concerning a family trust established by

Cole’s late husband, William Horace (Buster) Cole. 2 Ultimately, the proceeding did not

result in the appointment of a permanent guardian.


        2009 WILL


        In the fall of 2009, Susan Byars contacted Kristi Hyatt, an attorney who had

known Cole for “about” four years, 3 to set up an appointment for the purpose of drafting

a will. Other than arranging that appointment, Cole’s family did not participate in the

drafting process or otherwise give Hyatt any instructions. Following a private meeting

with Cole, Hyatt prepared the will and sent it to her for approval. On November 20,

2009, Cole executed that will at Hyatt’s office. Hyatt testified that she had no concerns

about Cole’s competence or soundness of mind at the time she executed the 2009 will.


2
 In the litigation involving the family trust, Truitt sought to remove the trustees, Susan and William, and
recover her attorney’s fees. According to Truitt, this litigation was originally filed by her brothers, Roy and
Thomas Ed, concerning a dispute over some property belonging to the trust.
3
 Hyatt testified that she had earlier assisted attorneys representing the trustees in litigation where Cole
had been named as a defendant.


                                                      3
      The 2009 will appointed Susan Faye Byars and William C. Cole as independent

co-executors and co-trustees of all trusts created by the will. The will provided that all

principal and income from the family trust established by her late husband would pass

to Susan and William in equal amounts. If either Susan or William predeceased her, the

trust distribution would be made to Cole’s grandchildren, subject to the establishment of

contingent trusts for those grandchildren who were less than twenty-one years of age or

incapacitated. After providing for her debts, the residue of her estate passed to Susan

and William in equal amounts, subject to similar contingent trust provisions.


      NEW POWER OF ATTORNEY


      In June 2010, Cole was living at Wynwood Assited Living in Vernon, Texas.

Stephanie Hord, LVN and Health/Woman’s Director at Wynwood, provided oversight for

Cole’s medication program. In that capacity, she saw Cole on a daily basis. Cole was

on medications for anxiety, upset stomach, heartburn, Parkinson’s disease, pain, and

dementia. Although Cole was generally oriented as to person, there were times when

she was not oriented as to place or time.        On certain days, Cole was difficult to

understand. On other days, she was unable to take her medication due to swallowing

problems.   She had a history of congestive heart failure, high blood pressure, and

plaque build-up in her veins.


      Truitt moved from Galveston to Vernon in June of 2009 to be with her mother.

Prior to her arrival, she had not visited Cole for approximately one year. Truitt testified

she came to visit her mother because Cole had been hospitalized for dehydration and

depression. The second day after her arrival Truitt had a conversation with Cole about



                                            4
why she had sued her mother concerning the family trust. 4 Truitt explained that she

didn’t initiate the litigation but was drawn into it and, as a result, she had accrued

considerable legal fees. She told her mother that, during mediation, the trustees (Susan

and William) and her twin brothers (Roy and Thomas Ed) agreed to pay each other’s

legal fees, or a portion thereof, but they would not agree to pay hers.


       Truitt testified Cole was experiencing hallucinations in the evenings, typically

lasting until after dark.      She indicated her mother had “some mild dementia” and

occasional memory problems although she did not believe her mother had Alzheimer’s

disease.    Truitt also took her mother to see an alternative medicine doctor who made

changes to Cole’s heart medications. Dr. Lindsey Streit, Cole’s primary physician, did

not approve of the medication changes.


       On June 25, Hord discussed the changes sought by the alternative medicine

doctor with Truitt. Hord’s concern was that the new doctor had prescribed several

changes to Cole’s heart medications and fluid pills that were not in her best interest.

Hord testified “that’s generally not just something that we completely go in and stop on

someone that has a history of cardiac problems.” Hord also indicated to Truitt that,

before the changes could be implemented, she was required to obtain approval from

Susan, who had Cole’s power of attorney.


       In July, Truitt hired Jay Cantrell, an attorney she found on the internet, to prepare

a new power of attorney for Cole. Truitt called Cantrell “at her mother’s request,” and

instructed him to prepare a new power of attorney empowering Truitt to “do and perform

4
At the time, Truitt’s guardianship proceeding was pending.



                                                   5
each and every act and thing that I may or can do (either personally or through my

person), . . . so long as [Truitt] shall deem, in his (sic) discretion, the act to be proper,

expedient or advisable.” There was no evidence Cole ever spoke with Cantrell or had

any participation in drafting the new power of attorney. On July 10, Cole purportedly

executed the document drafted by Cantrell.


       After Truitt was given power of attorney authority, Cole’s medical condition

substantially declined. Although Cole had been very active and walked throughout

Wynwood, she now had trouble walking and stayed in her room. Hord also testified

Truitt had Cole’s pet cat put to sleep, when others at Wynwood believed Cole would

never have consented to it. Truitt also had access to Cole’s bank account containing

approximately $200,000.


       2010 WILL


               A. PRE-EXECUTION


       In mid-July, Adult Protective Services received a complaint that Truitt had

medically neglected Cole by taking her off her blood pressure and heart medications.

On July 14, representatives of Adult Protective Services interviewed Cole and Truitt.

Cole was unaware Truitt now had access to her bank account and could not explain

why she had replaced Susan with Truitt as the person with her power of attorney. Truitt

indicated Cole was in very poor health and feared she would not live long. Truitt also

indicated Cole was unaware that the 2009 will had cut Truitt completely out of any

inheritance.




                                             6
      On July 16 and 17, Cole called Hyatt, and/or her legal assistants, requesting that

they fax her estate papers to Truitt’s attorney, Cantrell. In the background, they could

hear a voice coaching and prompting Cole. On July 20, Hyatt’s assistant received a

similar call from Cole and also heard a female voice coaching Cole. The assistant

indicated Cole appeared to be answering questions by repeating what someone was

saying to her. Later, that same day, Cole called again requesting that estate documents

be faxed to Cantrell. Again, the assistant heard a female voice in the background

prompting Cole. On July 21, Hyatt received a call directly from Truitt, who, acting as

Cole’s power of attorney, requested her mother’s estate documents. Hyatt testified he

was uncomfortable providing the documents because he believed Cole was being

coached. Ultimately, however, he complied with the request.


      Truitt testified that, after she received the documents from Hyatt, she showed

them to her mother, who then indicated she wanted a new will. Truitt testified that, at

first, her mother was leaning towards leaving the bulk of her estate to her. Truitt was

uncomfortable with that idea because she didn’t want her staying with Cole to be seen

as something done for personal gain. She testified that, after she expressed these

concerns, Cole changed her position and “wanted to leave everything to her

grandchildren and her great-grandchildren.” Truitt indicated Cole wanted to eliminate

any family-fighting and believed her children had “gotten enough” already.         Cole’s

attorney ad litem from the guardianship proceeding testified that, throughout this period,

Cole never expressed any desire to him that she wanted to change her 2009 will.


      From July to August, Cole began to lose more weight. She was having difficulty

expressing herself on occasions and gradually progressed to the point she could not


                                            7
take food or medications because she could not swallow. Hord testified Cole’s medical

condition declined dramatically in August. That same month, Truitt called Cantrell, to

schedule an appointment to talk about writing a new will for Cole. Cantrell testified that

at their meeting Cole “seemed” to grasp the natural objects of her bounty and “in

general what her estate was.” During their meeting, no one disclosed to Cantrell that

Truitt had sought permanent guardianship over Cole—a fact he testified would have

been significant to him. When Cole mentioned experiencing memory problems, Cantrell

advised that she have a medical examination.                  After speaking with Cantrell, Truitt

scheduled an appointment for Cole to see Dr. Francis Anwasi. Ultimately, Cantrell

decided not to write Cole’s will because of the size of her estate.


        In September, Cole was no longer able to walk without assistance and needed a

wheelchair. She also continued to have hallucinations. Truitt replaced Cole’s primary

physician with Dr. Anwasi. In addition, Cole began seeing a new doctor, Dr. Jerry

Tennet, for her decline in physical condition.


        On September 1, Terry Donk, an attorney who had written a will for Cole in 2001,

received a call from Truitt indicating Cole was in a rest home and wanted a new will.

Truitt testified that over the next day or two she sat down with her mother and went over

the 2009 will in detail. According to Truitt, she wrote down what her mother wanted to

change about the 2009 will and then faxed her notes to Donk in the form of a letter

signed by her mother. Truitt testified the letter was in her handwriting and signed by her

as well because Cole had a “very difficult” time writing.” 5                She included a medical


5
 The letter contained detailed legal instructions regarding the contents of the new will. The letter also
contained a note stating: “I don’t know if this is relevant, but I have two sons, three other grandchildren


                                                    8
competency statement signed by Dr. Answai. 6 Donk drafted a will and faxed it to Truitt

on September 13.           Truitt faxed back additional changes in her handwriting.                     On

September 15, Truitt made further corrections and gave Donk instructions for instant

faxing so she could receive a clean copy suitable for immediate execution. Truitt’s

instructions regarding the family trust and the clause leaving Cole’s entire residuary

estate to Truitt were very detailed and framed in legal language. On September 16,

Donk prepared the final draft incorporating Truitt’s latest changes and sent the will to

Truitt by overnight mail. Donk testified in deposition that he didn’t know if Truitt had

exerted undue influence over Cole because he had no contact with Cole. Instead, he

relied entirely on Dr. Anwasi’s statement.


        Also, on September 16, Dr. Frank Del Rio examined Cole at the request of Adult

Protective Services. He concluded Cole had capacity but that “it [was] very close”

based on her ability to answer basic questions regarding her safety, basic care, and

how to obtain help in an emergency. He also believed her capacity should be revisited

in the future and that the outcome could be different at that time. He believed it was

strange that Cole’s regular sitters, Diana and Crystal Negrete, did not seem to want to

leave during his interview. He also felt like there could be some undue influence being

exerted on Cole. Further, after he left Cole’s room, Truitt approached him and asked
______________________________

and one great grandchild, to whom I do not wish to leave any of my money or possessions. They are my
Son Thomas Ed Cole, his son Joshuah John Paul Cole and Joshuah’s son who’s (sic) name I don’t know;
and my son Roy Franklin Cole and his children Christopher Cole and Christine Cole.” Cole’s signature
was barely legible.
6
 On September 9, Dr. Anwasi signed a statement indicating Cole was mentally competent. He filled out
the statement after having spent at least thirty minutes with her in his office on three separate occasions.
He testified Cole was able to answer questions about her health and sickness and, despite her medical
circumstances related to her mental abilities and memory, was always oriented. He also indicated her
memory issues were consistent with early dementia.



                                                     9
whether the allegations against her had been “dropped” and if Cole had capacity. Dr.

Del Rio responded that he was presently unable to share any information.


       On September 17, Capps reported to Adult Protective Services that he was

worried Truitt was exerting an undue influence over Cole. When he first started talking

with Cole, she wanted to have an independent guardian appointed without any

connection to her family. After Truitt arrived, he indicated that things changed. He

reported that, when he speaks with Cole, she just “parrots” everything that Truitt states.

He also told Adult Protective Services that he was at a standstill because the

guardianship case was awaiting the appointment of a new judge. Truitt also contacted

Adult Protective Services to inform them that Cole was unhappy with Capps and that

she was going to see if the judge in the guardianship proceedings would appoint a new

attorney ad litem.


       B. EXECUTION OF THE 2010 WILL


       Hord testified that by September 20, Cole’s mental health had definitely

deteriorated. She was difficult to understand, her speech was slurred, her recall was

slow, and her affect was flat. She testified that Cole did not have an appetite, was

continuing to lose weight and was basically chair/bed fast without assistance. Although

Cole was oriented as to person, at times she was not oriented to place or time. Hord

also testified Cole would become weaker as the day progressed, experienced periods

where she would speak randomly, and was often confused.


       Robin Koch, Cole’s primary caseworker at Adult Protective Services, visited Cole

on the 20th at 2:40 p.m. and described her as very tired and not feeling well. Cole


                                           10
wanted to speak with her but asked if she could return at another time. When Koch

revisited Cole at 3:15 p.m., she was unaware Koch had visited earlier even though Koch

had earlier introduced herself as being from Adult Protective Services and had visited

Cole several times before. Before Koch left, Cole asked her to stay for a minute. Koch

heard Cole speaking with a woman and afterwards Cole said “I just want to tell you that

[Truitt] has not mistreated me in any way. She has not abused or neglected me or

taken any of my money.”


       At 5:30 p.m., Mary King (a notary), Ruth Timberlake (a Wynwood resident), Cole,

Truitt, Crystal, 7 and two witnesses, were present for the signing of the 2010 will. King

did not recall Cole ever speaking. She did recall Truitt putting the will in front of Cole

and saying, “mother, you know this is what we discussed and Mary is here to notarize

your—will and she just said yes.” She testified Truitt had to “kind of help her hold the

pen up to sign it.” She indicated that “[Cole] would kind of doze off and wake up. She

seemed fine but she didn’t—she kept just falling asleep.” “When everybody else was

visiting and talking, I’d happen to look over there and she would be asleep but then she

would come to, you know, every once in a while.” That is, “[s]he would wake up, she’d

open her eyes and look around.” King indicated that it took approximately an hour to

complete the signing process because Cole “kept falling asleep and there towards the

end, I do remember it did take her a long time to fill the rest out because she kept falling

asleep.” She further indicated Truitt stood holding the documents and asked Cole to

sign, two to three times. Describing the execution process, she testified “[Truitt] just


7
 Crystal was hired by Truitt to sit with Cole on weekdays from 1:00 p.m. until 7:00 p.m. and weekends
from 3:00 p.m. to 11:00 p.m.



                                                 11
kind of helped her hold the pen up but she did sign”—“[i]t was kind of like [Cole] would

try to hold her pen and she couldn’t hold it real well, and [Truitt] helped her put it in her

hand, and then kind of signed it there a little bit. She assisted her.”


        Truitt testified that executing the will took “close to an hour”--handwriting for her

mother was difficult so she “assist[ed] by holding the pen up.” She showed her mother

where to sign but did not recall her mother asking for any help. She testified Cole

discussed the will with others in her presence and understood who the children were

and what her assets were. She also testified Cole recognized the residuary clause

leaving Truitt the entirety of her residuary estate.


        Crystal testified that, on the day the will was signed, she was standing behind

Cole the entire time. She testified Cole was “very cognitive;” “[h]er memory was all

there;” no one helped Cole to grip the pen; she never dozed off and never closed her

eyes. Crystal estimated the execution took approximately thirty minutes. She testified

that, in their conversations prior to its execution, Cole wanted “everything to go to her

grandkids and great-grandkids.”


        Timberlake, a long-time Wynwood resident, testified Cole did not speak about

property she owned except to say she had a lot of land and stuff.                      She also told

Timberlake that she wanted a new will because she didn’t want William or Susan to

inherit saying “they already got enough.” Cole’s other sitter, Diana, 8 testified Cole was

pretty alert but did not talk about her property except to say that she had a big farm.


8
 Diana was hired by Truitt to sit with Cole from 7:00 p.m. until 10-11:00 p.m. weekdays and 3:00 p.m. to
11:00 p.m. weekends.



                                                  12
Diana testified Cole told her “she wanted to leave everything to her grandkids and great-

grandkids” after the 2010 will was signed.


         C. Post-execution


         On September 21, Cole was admitted to hospice. She was not oriented and had

begun hallucinating.    On September 22, Adult Protective Services visited Cole and

asked her about the 2009 will that cut Truitt out of her estate.       Cole replied she

remembered doing it and wanted to do it because what Truitt was doing at the time was

not right. On September 28, while Truitt was out of town, Adult Protective Services

spoke with her, informing her that Cole’s deteriorating condition necessitated that she

be sent to a hospital. Truitt would not agree to admit Cole.


         On September 29, Cole’s other children were visiting her when they were told by

an attendant that Cole needed to go to a hospital. Truitt was again contacted and again

she declined to admit her mother. An Emergency Medical Technician subsequently

decided to take Cole to the hospital because she was requesting to go. At the hospital,

Cole was diagnosed with a urinary tract infection and pneumonia. Cole later told Adult

Protective Services that she was glad to be hospitalized and wanted medical treatment.

Cole’s medical condition improved while she was hospitalized but when she was

transferred by ambulance to an assisted living facility in Midland, she passed away en

route.


         Adult Protective Services subsequently summarized its findings at the conclusion

of their investigation. Its investigators found William, Susan, Hord, and Capps credible.

They found Cole not credible because she gave conflicting statements and appeared to


                                             13
be coached. Truitt was also found to be not credible because (1) she had her mother

sign the 2010 will when, on the day of execution, Adult Protective Services had

observed Cole in a confused state of mind, (2) Cole made calls to Adult Protective

Services wherein a female voice was overheard coaching Cole as to what to say, (3)

Truitt appeared more concerned about Cole’s finances than her health and (4) there

was evidence Truitt isolated Cole from contact with her other children. Based on their

investigation, it was determined that the preponderance of the evidence indicated

William and Susan did not exploit 9 their mother. At the same time, Adult Protective

Services was unable to determine whether Truitt did exploit Cole.


        Proceedings Below


        On October 18, Susan and William filed an Application for Probate and for

Issuance of Letters Testamentary seeking to admit the 2009 will to probate.                          On

October 29, Truitt filed her opposition to that application and included her own

Application for Probate and for Issuance of Letters Testamentary seeking to admit the

2010 will to probate. Following a two-day bench trial, the trial court issued its Final

Judgment granting probate of the 2009 will and denying admission of the 2010 will

because it was procured when Cole lacked testamentary capacity and was executed as

a result of undue influence exerted by Truitt.            On June 30, the trial court entered an

order admitting the 2009 will to probate and appointing Susan and William as co-




9
 Adult Protective Service investigators used the following definition of “exploitation”: the illegal or
improper act or process of a caretaker, family member, or other individual who has an ongoing
relationship with the elderly or disabled person using the resources of an elderly or disabled person for
monetary or personal benefit, or gain without the informed consent of the elderly or disabled person.



                                                   14
independent executors. This appeal followed. Because we find Truitt’s third and fourth

issues dispositive, we address them first.


                                          DISCUSSION


       STANDARD OF REVIEW 10


       We may sustain a legal sufficiency challenge only when (1) the record discloses

a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the

evidence conclusively establishes the opposite of a vital fact. See King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In determining whether there is legally

sufficient evidence to support the finding under review, this Court must credit evidence

favorable to the verdict if reasonable jurors would have done so, disregard contrary

evidence unless reasonable jurors could not have done so, and reverse the jury’s

determination only if the evidence presented at trial would not enable reasonable and

fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005).


       In reviewing an appellant’s factual sufficiency challenge to an adverse finding on

which the other party had the burden of proof, we consider all of the evidence in the

record, both in support of and contrary to the finding.           See Dow Chemical Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001). We will set aside the district court’s finding


10
  The standard of review in jury trials is the same standard that applies in bench trials. See MBM
Financial Corp. v. The Woodlands Operating Co., L.P., 92 S.W.3d 660, 663 n.3 (Tex. 2009).


                                               15
only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).


      Finally, the trial court acts as fact finder in a bench trial. HTS Servs., Inc. v.

Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex.App.—Houston [1st Dist.]

2005, no pet.). Where there are disputed issues of fact, the trial court judge is the sole

judge of the credibility of the witnesses; Thornton v. Dobbs, 355 S.W.3d 312, 316

(Tex.App.—Dallas 2011, no pet.), and, as such, determines the weight to be given their

testimony, and resolves conflicts and inconsistencies in the testimony. Petrie v. Widby,

194 S.W.3d 168, 174 (Tex.App.—Dallas 2006, no pet.); Southwest Bell Media, Inc. v.

Lyles, 825 S.W.2d 488, 493 (Tex.App.—Houston [1st Dist.] 1992, writ denied). The trial

court may take into consideration all the facts and surrounding circumstances in

connection with the testimony of each witness and accept or reject all or any part of that

testimony.   Granger v. Granger, 236 S.W.3d 852, 859 (Tex.App.—Tyler 2007, pet.

denied).


      UNDUE INFLUENCE


      Lack of mental capacity and undue influence are two separate and distinct

grounds for avoiding an instrument or contract. See Long v. Long, 133 Tex. 96, 125

S.W.2d 1034, 1036 (Tex. 1939).       “[I]ncapacity implies the lack of intelligent mental

power; while undue influence implies within itself the existence of a mind of sufficient

mental capacity to make a will if not hindered by the dominant or overriding influence of

another in such a way as to make the instrument speak the will of the person exercising

the undue influence and not that of the [testatrix].” Id. See Rothermel, 369 S.W.2d at



                                           16
922 (“Undue influence implies the existence of a testamentary capacity subjected to and

controlled by a dominant influence or power.”) That said, “weakness of mind and body,

whether produced by infirmities of age or by disease or otherwise, may be considered

as a material circumstance in determining whether or not a person was in the condition

to be susceptible to undue influence.” In re Estate of Lynch, 350 S.W.3d 130, 135

(Tex.App.—San Antonio 2011, pet. denied) (quoting Long, 125 S.W.2d at 1036). See

Lowery v. Saunders, 666 S.W.2d 226, 233 (Tex.App.—San Antonio 1984, writ ref’d)

(“evidence of impaired mentality not amounting to testamentary incapacity may afford

an opportunity for the exercise of undue influence . . . .”)


       To prevail on an undue influence claim, the contestant has the burden to prove

(1) the existence and exertion of an influence, (2) that subverted or overpowered the

testatrix’s mind at the time she executed the instrument, (3) so that the testatrix

executed an instrument she would not otherwise have executed but for such influence.

In re Estate of Johnson, 340 S.W.3d 769, 776 (Tex.App.—San Antonio 2011, pet.

dism’d) (citing Rothermel, 369 S.W.2d at 922). See Estate of Davis v. Cook, 9 S.W.3d

288, 292-93 (Tex.App.—San Antonio 1999, no pet.). There must be some tangible and

satisfactory proof of the existence of each of the three elements. Johnson, 340 S.W.3d

at 776 (citing Rothermel, 369 S.W.2d at 922).


       Importantly, not every influence exerted by one person on the will of another is

undue; Rothermel, 369 S.W.2d at 922, and its exertion “cannot be inferred by

opportunity alone.”    See Cotton v. Cotton, 169 S.W.3d 824, 827 (Tex.App.—Dallas

2005, pet. denied). An influence is not “undue” unless the free agency of the testatrix is

destroyed and a testament is produced that expresses the will of the one exerting the


                                              17
influence rather than the one executing the will. See Long, 125 S.W.2d at 1035-36.

Thus, a will contestant must not only provide evidence that an undue influence existed,

they must also offer evidence of the testatrix’s state of mind at the time the will was

executed that would tend to show her free agency was overcome by such influence.

See Rothermel, 369 S.W.2d at 922.


       The exertion of undue influence is usually a subtle thing, and by its very nature

typically involves an extended course of dealings and circumstances. Johnson, 340

S.W.3d at 769. Thus, its elements may be proven by circumstantial or direct evidence.

Rothermel, 369 S.W.2d at 922.         Accordingly, “all of the circumstances shown or

established by the evidence should be considered; and even though none of the

circumstances standing alone would be sufficient to show the elements of undue

influence, if when considered together they produce a reasonable belief that an

influence was exerted that subverted or overpowered the mind of the testatrix and

resulted in the execution of the testament in controversy, the evidence is sufficient to

sustain such conclusion.” Rothermel, 369 S.W.2d at 922.


       Factors which have been considered in determining the existence of undue

influence include: (1) the nature and type of relationship between the testatrix, the

contestants, and the party accused of exerting the undue influence; (2) the opportunities

existing for the exertion of the type of influence or deception possessed or employed;

(3) the circumstances surrounding the drafting and execution of the testament; (4) the

existence of a fraudulent motive; (5) whether there has been an habitual subjection of

the testatrix to the control of another; (6) the state of the testatrix’s mind at the time of

the execution of the testament; (7) the testatrix’s mental or physical incapacity to resist


                                             18
or the susceptibility of the testatrix’s mind to the type and extent of the influence

exerted; (8) words and acts of the testatrix; (9) weakness of mind and body of the

testatrix, whether produced by infirmities of age or by disease or otherwise; and (10)

whether the testament executed is unnatural in its terms or disposition of property. In re

Estate of Graham, 69 S.W.3d 598, 609-10 (Tex.App.—Corpus Christi 2001, no pet.)

(citing Rothermel, 369 S.W.2d at 922).        Additionally, whether the person allegedly

exercising undue influence took part in the preparation or execution of the will has been

considered as a factor; Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex.App.—Houston [1st

Dist.] 1996, no writ), and “[p]roof of the planning and preparation of the will, . . . is the

heart of an undue influence case.” Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564, 566

(1955). See Mackie v. McKenzie, 900 S.W.2d 445, 449 (Tex.App.—Texarkana 1995,

writ denied) (motive, character, and conduct of person benefitting from will is relevant).


        We discuss each of the elements of an undue influence action below. Because

of the similarity between the elements, some overlap is unavoidable.


         A. EXISTENCE AND EXERTION OF AN INFLUENCE


        The record indicates that, during the period of Truitt’s interaction with Cole, Cole

was taking a myriad of medications for a variety of medical issues including anxiety,

pain, depression, and dementia. She also had a history of high blood pressure and

congestive heart failure. Although Cole was generally oriented as to person, at times

she was not oriented as to place or time. Her mental and physical health was markedly

declining and she suffered from hallucinations, memory problems, and chronic weight

loss.



                                             19
       Despite Cole’s declining medical condition, upon her arrival, Truitt immediately

sought to change Cole’s medical care from traditional to alternative. After learning that

the changes prescribed by an alternative medicine doctor had to be approved by Susan,

as Cole’s power of attorney, Truitt hired an attorney to draft a new power of attorney.

The new power of attorney, drafted without any involvement from other family members

or her attorney ad litem, displaced Susan and appointed Truitt. Neither is there any

evidence the attorney who drafted the new power of attorney ever met with, or spoke to,

Cole, or was involved in any way other than signing the document.             Moreover, in

obtaining the new power of attorney, Truitt successfully achieved what she had sought

through the guardianship proceeding, i.e., complete control of Cole’s medical treatment

and financial affairs. Afterwards, Truitt ousted Cole’s existing doctors in favor of new

doctors who had no prior involvement with her mother’s medical care. She also had

Cole’s pet cat put to sleep when others at Wynwood thought Cole would never have

consented to it.


       Truitt also hired an attorney to draft a new will with no input from Cole’s family or

her attorney ad litem. The 2010 will’s provisions represented a complete departure from

the terms of the 2009 will. Only Truitt communicated with the attorney. Cole’s attorney

ad litem, Capp, was unaware a new will was being drafted or that Cole even wished to

change her beneficiaries. Cole had been talking to him about the appointment of a

guardian independent of any family influence. However, after her arrival, Truitt quickly

became Cole’s new power of attorney, orchestrating the drafting of a new will

completely at odds with the terms of the 2009 will — a will that was less than a year old




                                            20
and drafted after face-to-face meetings with Cole’s attorney, and without any family

influence. Capp also observed that Cole seemed to “parrot” whatever Truitt stated.


      After examining Cole at Wynwood, Dr. Del Rio believed Cole was minimally

competent and that Truitt could be exerting undue influence over her. Although Dr.

Anwasi opined Cole was competent, he had been her doctor for only a few weeks, had

only visited with her two to three times for a period of approximately thirty minutes, and

his interaction focused on her health and sickness. As the ultimate trier of fact, Dr.

Anwasi’s opinion testimony regarding Cole’s competency was not binding on the trial

court. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex. 1998);

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Further, as regards any

inconsistencies or conflicts of opinion between witnesses, the trial court could accept or

reject any or all of that evidence. See Thornton, 355 S.W.3d at 316; Granger, 236

S.W.3d at 859.


      Having reviewed the entire record, we conclude there is legally and factually

sufficient evidence to support a finding that undue influence existed and was exerted.


      B. OVERPOWERING THE TESTATRIX’S MIND


      After Truitt’s arrival, Cole was isolated from her family and her primary medical

providers. During that time, Truitt accomplished a complete turn-about in Cole’s power

of attorney, her medical care, and her estate plans. Other than Cole’s signature on the

new power of attorney, there is no evidence that she had any input in initiating the

process or drafting the document. Shortly thereafter, Cole indicated to Adult Protective




                                           21
Services that she was not aware Truitt would have power over her bank accounts and

was uncertain why she displaced Susan and chose Truitt.


       After the new power of attorney was executed, Cole was coached as to what to

say to members of the law firm who assisted her in drafting an earlier will in order to

obtain her estate documents for Truitt. After Cole’s medical condition worsened further

still, Truitt hired a new attorney to draft a new will for Cole, thereby dispossessing Susan

and William in favor of certain grandchildren, great-grandchildren and Truitt. The 2010

will contained no provisions, as did the 2009 will, for the establishment of contingent

trusts for grandchildren less than twenty-one years of age or disabled.          And, after

execution of the 2010 will, Cole told Adult Protective Services that she had executed the

2009 will intending to dispossess Truitt because she did not believe Truitt was doing

right. Further, there is no evidence Cole had any input in the selection of the attorneys

hired by Truitt.


       Further, Truitt, Crystal, and Diana testified that, when the 2010 will was executed,

Cole wanted everything to go to her grandchildren and great-grandchildren. However,

the 2010 will did not leave everything to Cole’s grandchildren and great-grandchildren.

Rather, some grandchildren and great-grandchildren were disinherited while Truitt

inherited all of Cole’s residual estate, a disposition contrary to Cole’s statements that

her children “had enough already.”       Importantly, several family members that were

disinherited in the 2010 will, Roy and Thomas Ed, had opposed Truitt in the Trust

litigation and, according to Truitt, treated her unfairly by not agreeing to pay her

attorney’s fees.   The 2010 will also similarly disinherited grandchildren and great-

grandchildren from their line of the family.


                                               22
      Throughout this period, Cole indicated to her attorney ad litem that, in order to

avoid family conflict, she wanted an independent guardian—wishes reflected neither in

the new power of attorney nor the 2010 will. Moreover, Cole did not express to Capp

that she wanted a new will or to dispossess William and Susan. Having reviewed the

record, we find that, given Cole’s poor physical and mental health coupled with the

terms and events surrounding the execution of the new power of attorney and the 2010

will, there is legally and factually sufficient evidence to support a finding that Truitt

overpowered Cole’s mind and the 2010 will expressed Truitt’s will rather than Cole’s

desires.


      C. NO EXECUTION “BUT FOR” INFLUENCE


      In drafting the 2010 will, only Truitt communicated with the attorney. Donk never

had any direct communication or face-to-face meeting with Cole. All drafts and edits

were circulated through Truitt. Although Cole’s health was failing and she could barely

pen a legible signature, Truitt’s communications to Donk were very detailed and

couched in legal language sufficient for direct insertion into a will. Moreover, the 2010

will was drafted by Truitt in isolation with Cole and there was no corroborating evidence

establishing that Cole suggested any of its terms. Moreover, even if the trial court gave

weight to the testimony of Truitt, Crystal and Diana that Cole wanted to leave everything

to her grandchildren and great-grandchildren because her children had already received

enough, her 2010 will does not reflect such an intent.


      The 2010 will also represented a complete departure from the 2009 will, with only

Truitt inheriting as between her siblings – siblings with whom she had a conflict because



                                           23
of the earlier litigation concerning the family trust. Remarkably, the 2010 will required

that any memorandum disposing of Cole’s personal effects be in Cole’s handwriting

when Cole could barely sign her name in a legible manner with Truitt’s assistance. In

addition, there was no involvement by Cole’s other family members or her attorney ad

litem in the formation or execution of the 2010 will. Afterwards, in a conversation with

Adult Protective Services, Cole recalled that the 2009 will dispossessed Truitt because

she wanted it that way and remembered Truitt was not acting right.


        Finally, the day the 2010 will was executed, Cole had no appetite, was suffering

from chronic weight loss, was chair/bed fast, weakened as the day progressed, had

memory issues and, in the afternoon, appeared very tired and not feeling well. She was

unaware from one hour to the next whether Adult Protective Services had visited her

and, while there, she was being coached to make statements vindicating Truitt of

exploitation complaints being made against her. When it came time for the will to be

executed, Cole did not speak while drifting in and out of awakened consciousness.

Truitt put the will in front of Cole, told Cole it was what they discussed, indicated where

Cole should sign and helped Cole hold the pen while she signed. All told, the “signing”

took approximately an hour. 11


        Having considered the entire record, we cannot say the trial court’s finding was

so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. See Cain, 709 S.W.2d at 176. Accordingly, we find there was legally and

11
 Regarding execution of the 2010 will, the trial court apparently gave little or no weight to the conflicting
and, at times, inconsistent testimony of Truitt, Timberlake and Crystal. See Thornton, 355 S.W.3d at 316;
Granger, 236 S.W.3d at 859.




                                                     24
factually sufficient evidence to support the trial court’s finding that the 2010 will would

not have been executed but for undue influence exerted by Truitt.


       Truitt’s third and fourth issues are overruled and her remaining issues are

pretermitted. See Tex. R. App. P. 47.1.


                                       Conclusion


       The trial court’s judgment is affirmed.


                                                  Patrick A. Pirtle
                                                      Justice




                                             25
