There was a problem adding this course to your account. Please try again in a few minutes. If the problem persists, you can contact our support department at (877) 880-1335.
Adding Registration, Please wait...
You must be logged in to perform this action.
Log in
Cancel
Undue Influence: Pressure Brought to Bear Directly on the Burden of Roof
Trusts and Estates Quarterly - Volume 26, Issue 4
Credit(s):
1 Legal Specialization in Estate Planning; Trust & Probate Law
1 Self-Study Credit
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 Legal Specialization in Estate Planning; Trust & Probate Law
1 Self-Study Credit
Customers Who Bought This Item Also Bought
(Self Study Articles) Whose Money is it Anyway? Making Cents of the California Uniform Principal and Income Act
(Self Study Articles) Post Mortem of Proposition 19: The COVID-19 of the Estate Planning World
(Self Study Articles) To Protect and Serve – A Case to Abolish Attorney Work Product Protection as to Estate Planners’ Files in Post-Death Will or Trust Contests
(Self Study Articles) Let's Get Digital! ESI in Trust and Estate Litigation – Part II
(OnDemand) Suspension and Removal of Trustees
(Self Study Articles) Till Death Do We Litigate That Divorce
(Self Study Articles) Tax Issues When Settling a Trust or Estate Dispute: A Guide for the Litigator
(Self Study Articles) An Estate Planner's Guide to Family Law Presumptions
(Self Study Articles) Now What? Enforcement and Collection of a Surcharge Order
(Self Study Articles) Smith v. Szeyller: Probate Court Authority for Attorneys’ Fee Award Under the Substantial Benefit Doctrine for Successful Beneficiaries
(Self Study Articles) California’s Statutory Will Needs an Update to Keep Up with Duke
(Self Study Articles) Transmutation by Deed in California Is a Risky Business
(Self Study Articles) Whose Money is it Anyway? Making Cents of the California Uniform Principal and Income Act
(Self Study Articles) Post Mortem of Proposition 19: The COVID-19 of the Estate Planning World
(Self Study Articles) To Protect and Serve – A Case to Abolish Attorney Work Product Protection as to Estate Planners’ Files in Post-Death Will or Trust Contests
(Self Study Articles) Let's Get Digital! ESI in Trust and Estate Litigation – Part II
(OnDemand) Suspension and Removal of Trustees
(Self Study Articles) Till Death Do We Litigate That Divorce
(Self Study Articles) Tax Issues When Settling a Trust or Estate Dispute: A Guide for the Litigator
(Self Study Articles) An Estate Planner's Guide to Family Law Presumptions
We are committed to accessibility! All OnDemand programs after January 1, 2022 include closed captioning. To request closed captioning for a program older than January 1, 2022, send us a note at accessibility@calawyers.org or contact us at 916-516-1760 for assistance.
Adding Registration, Please wait...
