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Nicholas J. Dimakos
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Nicholas J. Dimakos
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In Undue Influence Cases, Shifting the Burden Does Not Always Mean Winning the Case

Along with challenges to capacity, the most common theory used to invalidate a will is undue influence.  In these cases, the will challenger (the “plaintiff”) alleges that the proponent of the will (the “defendant”) exerted so much influence and control over the person making the will (the “testator”) that the defendant replaced the testator’s will with his or her own.  In other words, the will being challenged, which is supposed to reflect the testator’s wishes, actually reflects the wishes of the defendant, who improperly influenced the testator.  Of course, most times those wishes happen to benefit the defendant.

It is sometimes easy to overestimate the merit of an undue influence claim because of the burden shifting that applies in these cases.  Normally the party bringing a claim has the burden to prove the truth of the facts on which he or she is relying.  However, this burden can be shifted to the defendant in an undue influence case if the plaintiff can demonstrate that a “confidential relationship” existed between the testator and the defendant, and that “suspicious circumstances” surrounded the preparation and execution of the will.  When this happens, the burden shifts to the defendant to prove that undue influence did not occur.

The ability to shift the burden, or even the credible threat of being able to do so, can be a powerful tool in New Jersey probate litigation. It might cause the defendant to consider settling a case when he or she otherwise would not have, or settling at an earlier stage or on terms more favorable to the plaintiff than the defendant would have wanted.   The reason is that cases in which the plaintiff can shift the burden often involve factual issues that require a trial to decide.  Because litigants in probate cases frequently, for a variety of reasons, prefer not to go to trial, a plaintiff who can shift the burden might be able more credibly to threaten a willingness to go to trial and use that threat to his or her advantage in settlement negotiations.

But every case must be evaluated in the context of its own unique set of facts.  We previously discussed a recent case in which the court ruled that a testator suffering from “mild dementia” retained the capacity to execute a will.  The case pitted the testator’s American family, which the testator strongly favored, against her Italian family, which challenged the will that benefited the American side.  In addition to arguing that the testator lacked capacity, the challengers argued that her nephew, one of the beneficiaries under the will, had unduly influenced the testator.

The court decided the case on a motion for summary judgment — that is, without having a full-blown trial with live testimony.  It ruled that the plaintiffs had successfully shifted the burden by establishing a presumption of undue influence.  However, the will stood, as the defendants successfully overcame the presumption of undue influence by showing that the testator had a long-standing desire that her assets pass to her American family, and not to her Italian family.  The testator’s long-time friend and accountant, who did not benefit from the will, corroborated this wish.  So did the attorney who drafted the will.  It was also undisputed that the testator was a strong-willed person who would not easily be swayed to do something against her own will.  In addition, the beneficiaries of the will were family members (“natural objects of the testator’s bounty”), which reduced the degree of suspicion with which the court viewed the will.  Taking these circumstances together, the court ruled that, even if the will benefited the testator’s nephew and was executed under suspicious circumstances, there was nothing to indicate that the nephew had exercised undue influence over the testator.

This serves as a good, practical reminder for litigants to view legal concepts as tools to achieve certain goals.  While shifting the burden in an undue influence case is certainly helpful to the party challenging the will, it is not a magic bullet.  In evaluating goals, including settlement, the plaintiff should keep in mind that shifting the burden does not always mean winning the case.

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Nicholas J. Dimakos
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Nicholas J. Dimakos
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Related Posts
Undue Influence Can Unwind Lifetime Gifts
I was Excluded as a Beneficiary, but Don’t Think it was Intended; am I out of Luck? Maybe Not!
It’s Never Too Late (Sometimes) to Assert Rights as a Beneficiary
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