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Who Has The Burden of Proof In A California Will Contest?

The burden of proof in a California will contest depends on what grounds are alleged for challenging the will, and can shift during different phases of the trial.

The Will Proponent Has The Burden of Proof of Due Execution

At the trial, the proponents of the will have the burden of proof of due execution.

This is usually a straightforward endeavor, as long as the formalities of execution were complied with.

The Will Contestant Has The Burden of Proof On Their Challenge

A will contestant has the burden of proving the issues raised by him in the contest.

Pursuant to section 8252 of the California Probate Code the contestants of the will have the burden of proof for the following enumerated challenges:

A preponderance of evidence is necessary to sustain a contestant’s burden to prove issues raised by him, in a will contest. Estate of Llewellyn (Cal. App. Feb. 9, 1948), 83 Cal. App. 2d 534, 189 P.2d 822, 1948 Cal. App. LEXIS 1118.

When Does The Burden of Proof Shift In A California Will Contest?

The burden of proof can shift during a California will contest trial.

In a will challenge on the grounds of undue influence, if the contestant proves that the evildoer had a confidential relationship with the testator, procured the document, and unduly benefited, then the burden of proof shifts to the evildoer to prove the absence of undue influence.

As stated in Rice v. Clark (2002) 120 Cal. Rptr. 2d 522, 527:

Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence (§ 8252), this court and the Courts of Appeal have held that a presumption of undue influence, shifting the burden of proof, arises upon the challenger’s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.

A Prohibited Transferee Has The Burden of Proof When Offering The Will For Probate

While it is true that generally the person challenging the will has the burden of proof, this rule is not absolute.  A proponent of a will that is a “prohibited transferee” under California Probate Code section 21380 has the burden of proof.  Why?  Because certain transferees raise the presumption that the will is the product of fraud of undue influence.  Section 21380 of the California Probate Code states:

(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

(1) The person who drafted the instrument.

(2) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.

(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.

(4) A care custodian who commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.

(5) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.

(6) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.

(7) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.

(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.

(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (5), (6), or (7) of subdivision (a), the presumption created by this section is conclusive.

(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.

As stated in section 21380, the prohibited transferee can rebut the presumption of fraud or undue influence by proving by clear and convincing evidence that the donative transfer was not the product of fraud or undue influence.

Will contests are challenging, even on the strongest facts.  A California probate lawyer can help you evaluate the strength of your will contest, considering the applicable burden of proof and potential gain if the will challenge is successful.

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San Diego

Merwyn J. Miller

Los Angeles County

Stewart J. Levin

Orange County

Priscilla Madrid

Ventura County

Naomi Stal

San Mateo County

Sally Bergman

San Bernardino County

Fred W. Edwards

Stanislaus County (Modesto)

Thomas Bonte

Santa Clara County

Nicholas P. Jellins