In a , who has the burden of proof can determine who wins the case. If the probate judge hearing the will contest hears the evidence, and the evidence is unequivocal and favors neither side who wins? If you have the burden of proof, you lose. So who has the burden of proof is critical. Until 2014, the Florida Trust Code was not clear as to who had the burden of proof.
The Florida Probate Code and the Florida Trust Code provide that a will, trust, or revocation of a will or trust, is void if it is procured by fraud, duress, mistake, or undue influence. Both codes specify grounds for a will or trust contest that challenges the validity of the document, but the Probate Code alone specifies which party bears the burden of proof in a contest. There is no corresponding provision of the Florida Trust Code allocating the burden of proof to one side or the other.
Pursuant to the probate statute governing will contests, the proponent of the will bears the initial burden of establishing the formal execution and attestation of the will. If formal execution and attestation is established, the burden of proof shifts to the person contesting the will to prove the grounds of the contest. Generally, under Florida law, a plaintiff or petitioner bears the burden of proof in a proceeding.
It would then seem that a person contesting a trust initially bears the burden of proof since there is no specific statute addressing the issue. However, because trusts are similar to wills in their purpose and are often referred to as substitutes for wills, there has been confusion as to who bears the initial burden of proof and when and how that burden shifts.
To address the issue, in 2014 the Florida legislature added Section 736.0207(1) to the Florida Trust Code to provide as follows.
In an action to contest the validity or revocation of all or part of a trust, the contestant has the burden of establishing the grounds for invalidity.
In a will contest, the burden of proof starts on the contestant to the will, but then shifts to the proponent of the will if the contestant can establish that the will was actively procured under the seminal Florida case of . The Florida Probate Code provision on this topic states as follows:
In any transaction or event to which the presumption of undue influence applies, the presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.
The active procurement factors set forth in the Estate of Carpenter case as follows.
- presence of the beneficiary at the execution of the will;
- presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
- recommendation by the beneficiary of an attorney to draw the will;
- knowledge of the contents of the will by the beneficiary prior to execution;
- giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- securing of witnesses to the will by the beneficiary; and,
- safekeeping of the will by the beneficiary subsequent to execution.
The new trust code provision does not seem to have this burden shifting mechanism if active procurement is shown. Nevertheless, the active procurement factors would still seem to be a necessary focus of any proceeding to invalidate a trust on undue influence grounds.