This is the second article in a series covering a recent series of CPD programs by the OBA Trusts and Estates Section relating to Will challenges. In the second session, “Gathering the Evidence and Establishing the Grounds” the panel explained several important evidentiary considerations in preparing a Will challenge application. In particular, counsel ought to turn their minds to the shifting burdens of proof in Will challenges, a wide variety of evidentiary sources, and common admissibility and ethical issues.
Shifting Burdens and Suspicious Circumstances
Even though the “location of the burden of proof is of unusual importance in cases of contested wills,”[1] counsel is often uncertain about where the burden lies. The legal burden rests with the propounder of the Will, who is responsible for establishing capacity, knowledge and approval, and due execution. However, if the propounder can establish that the Will was duly executed and that the testator read and understood the Will, they benefit from a presumption of validity and are relieved from the responsibility of establishing capacity and knowledge and approval.
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