Will Contests Part II: The Burden Of Proof May Be On The Defendant

Several weeks ago, I wrote about how to avoid Will contests in Part I of my series on Will contests. This week we will discuss one of the many reasons why it is important to avoid Will contents.

Those challenging wills often assert that the beneficiary of the Will practiced "undue influence" against the testator. Undue influence is defined as "mental, moral, or physical exertion which has destroyed the free agency of the testator by preventing the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another." Gellert v. Livingston, 5 N.J. 65 (1950).

Essentially, undue influence requires a showing that the beneficiary of the Will pressured the testator to make a Will that was not of the testator's own free will.

Many people would be surprised to learn that under New Jersey law the burden of proof is often on the defendant (proponent of the Will) to demonstrate that there was no undue influence. The New Jersey Supreme Court, in Haynes v. First National State Bank of NJ, 87 N.J. 163 (1981), held that there is a presumption of undue influence and that the burden shifts to the proponent of the Will if the proponent stood in a confidential relationship with the testator and there are additional suspicious circumstances present.

It is easy to prove a confidential relationship. The Will contestant needs to prove that a beneficiary of the Will is a caregiver, a spouse, a child or anyone else who the testator trusts and relies upon.

Suspicious circumstances are also easy to prove...