We are all familiar with the phrase: “Innocent until proven guilty.”
This phrase is often used to describe the basic tenet of criminal law that it is the state accusing an individual of a criminal act that has the burden of proving the person’s guilt. This same is generally true in civil litigation as well. Generally speaking, the individual bringing a case, asserting fraud or negligence or other wrongful acts, has the burden to prove those allegations. In the context of the challenge to a will, however, this idea is twisted a bit. Essentially it is the executor of the estate, the individual charged with “defending the will,” who will have the burden to prove the will is valid.
Under New Hampshire law there is a presumption that a testator has capacity to sign a will. Once the individual who is challenging the will presents some evidence to rebut this presumption of the testator’s capacity, the proponent of the will retains the burden of proving by a preponderance of the evidence presented, that the testator actually possessed the requisite capacity to sign the estate planning documents. In essence, when an individual challenges a will on the grounds of “lack of testamentary capacity,” the executor bears the burden of proving capacity. Although this may seem to be only an academic discussion, it actually can make the difference between upholding or setting aside an estate plan. Will challenges are factually intensive cases. It is common in these matters that there will be significant evidence on either side of the argument—plenty of evidence that might demonstrate the testator knew what he or she was doing and plenty of evidence to suggest that the individual lacked the capacity to sign a will. In such “close cases,” who owns the burden is critical. In other words, a tie goes to the challenger—in this case the individual challenging the will.
Understanding the application of this somewhat unusual burden of proof in will contest cases is critical when ascertaining the likelihood of success or the potential for an unwelcomed ruling.
