UNDUE INFLUENCE: PRESSURE BROUGHT TO BEAR DIRECTLY ON THE BURDEN OF PROOF

By Bryan L. Phipps, Esq.*

I. INTRODUCTION

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. This article suggests that these cases do not actually modify the burden of proof from preponderance to clear and convincing. Instead, the cases suggest that the burden of proof in undue influence cases should be the preponderance of the evidence—applied on a sliding scale, much like the sliding-scale approach used in determining the requisite level of capacity needed to execute a trust amendment.¹

II. DEFAULT RULES REGARDING BURDENS OF PROOF