What is the Burden of Proof in Trust and Will Contests?

Today we'd like to talk about the burden of proof in trust and will contests. There's a lot going on in that phrase, however, that non-legal people might have trouble with, so let us unpack it for you.

Wills vs. Trusts - What's the Difference?

A will is a document that distributes the money, property, and other assets of a deceased person. A trust describes a relationship where one person is managing money for the benefit of another. While the situations where trusts are used are much broader than for wills, trusts are often used in addition to or in lieu of a will, because in some circumstances they have benefits, like avoiding hefty estate taxes.

Probate Litigation & Burden of Proof

A trust or will contest happens when someone argues that there's a problem with the will or trust of a deceased person. An example of the arguments commonly used in these cases is undue influence, where the person contesting the will argues that an heir had too much control over the deceased person (or decedent) and the writing of the will.

The burden of proof in any case refers to who has to prove the case and how high the standard is. You're probably already familiar with the burden of proof in criminal cases: the state, or government, has to prove that the accused is guilty beyond a reasonable doubt. This addresses both who has to prove the case (the government, not the accused) and how strongly they have to prove it - "beyond a reasonable doubt."

So what's the burden of proof in trust and will contests? Burdens of proof can differ from state to state, but generally, the person offering the will to the probate court has the burden of proof to get it admitted; then, once the will is accepted by the court, the burden of proof changes to the person who wants to contest the will. In the case of a trust, the person contesting it has the burden of proof. Generally, the claim in any non-criminal case must be proved "by a preponderance of the evidence," meaning the claim is more likely than not to be true.


Do you think there's a problem with a loved one's will? Is someone else contesting a will or trust to which you're an heir or beneficiary? Contact us for a consultation. Our team can offer guidance and representation for your will contest.

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