Contesting a Will Flashcards
What are the elements and burdens of proof for undue influence?
Undue Influence: (1) influence is exerted (2) the result of the influence is the overpowering of the mind and free will of the testator (3) A will is created that, but for the undue influence, would not have been created.
The burden of proof is on the person contesting the will to prove these elements. BUT, if the following elements are met, then there is a rebuttable presumption of undue influence and the burden shifts to the proponent of the will to prove that there is NOT undue influence:
(i) a secret relationship with the testator (ii) the “influencer” held procure or draft the will (ex - used their attorney) (iii) the result is an unnatural bequest or devise to the “influencer” such that benefits the influencer.
