“The burden of proof, and who has it, can often mean the difference between success or failure at trial. As explained in this article, for any civil or probate proceeding (including contests to wills or trusts) the default burden of proof is preponderance of the evidence. Analyzing case law to determine whether courts have modified the default burden of proof in undue influence cases from preponderance of the evidence to clear and convincing evidence is difficult, but worth the effort. While several noteworthy decisions purportedly stand for the proposition that clear and convincing evidence is required to invalidate a testamentary document on the basis of undue influence, a detailed analysis of the cases compels a different conclusion.“
By Bryan L. Phipps, Esq.*
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