The burden of proof and who has it can often mean the difference between success or failure at trial. For any civil or probate proceedings—including contests to will or trusts—the default burden of proof is preponderance of the evidence. Analyzing the decisional law to determine if the default burden of proof has been modified to require clear and convincing evidence is a bit more convoluted. Several noteworthy Court of Appeal decisions purportedly stand for the proposition that clear and convincing evidence is required, but a detailed analysis of these cases compels a different conclusion. Instead of requiring clear and convincing evidence, an early California Supreme Court case supports the conclusion that the analysis of undue influence is meant to be similar to the sliding-scale approach under a preponderance of the evidence standard used in determining the requisite level of capacity needed to execute a trust amendment.
Continue Reading Undue Influence: Pressure Brought to Bear Directly on the Burden of Proof