Spring, Michael C.

English

University of Miami School of Law

University of Miami Law Review Volume 26 Number 1 Article 14 10-1-1971 Will Contests: The Shifting Burdens of Proof Michael C. Spring Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Michael C. Spring, Will Contests: The Shifting Burdens of Proof, 26 U. Miami L. Rev. 283 (1971) Available at: https://repository.law.miami.edu/umlr/vol26/iss1/14 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. CASES NOTEDstituted Court" approving the positions of Oregon and Louisiana wouldnot be totally unexpected. The essence of our criminal justice systemhinges on a verdict of guilty by the entire jury based on proof beyondany reasonable doubt. Therefore, regardless of the outcome of Apodaca,this writer maintains that in criminal trials, the prosecution must notonly prove guilt beyond a reasonable doubt to the jury as a whole, butmust make that showing to each individual juror. If any juror does notbelieve that the defendant is guilty, a verdict of guilty cannot be rendered,and rather than convict a defendant when such doubt exists, a retrialshould be ordered. Any other standard would lessen the responsibilityplaced on the prosecution for a conviction by the burden of proof re-quired, and the presumption of innocence would be fatally weakened.It is therefore submitted that the unanimity rule for criminal jury verdictsis not merely an historical antique, but is a necessity for a fair trial.RAYMOND M. SEIDLERWILL CONTESTS: THE SHIFTING BURDENS OF PROOFPetitioners were lineal descendants, who had not been included intheir mother's will. They contested probate of the will on the groundsthat the testamentary instrument had been obtained as a result of theexercise of undue influence by their sister, the sole beneficiary. Thecounty judge found that a "confidential relationship" existed betweenmother and daughter and that the daughter actively procured the will.Consequently, the judge ruled that a presumption of undue influencearose and that the burden of proof shifted to the daughter, requiring herto prove that there was no undue influence. The court then found thatthe daughter's evidentiary showing was insufficient to carry the burden ofproof necessary to rebut the presumption and refused to admit the willto probate. The District Court of Appeal, Fourth District, reversed thecounty judge and held that the raising of a presumption of undue influ-ence did not shift the burden of proof to the proponent of the will. Ac-cording to the Fourth District, the daughter was only required to intro-duce "credible evidence" to rebut the presumption; once such evidencewas introduced, the presumption and the persuasiveness of its support-ing evidence disappeared. Having determined that the presumption failedand after reviewing the other remaining evidence in the record, the courtruled that there was insufficient evidence to support a finding of undueinfluence as a matter of law.1 On certiorari, the Supreme Court of Florida38. At the time of the writing of this Note, Mr. Justice Harlan and the late Mr.Justice Black announced their resignations to the Supreme Court, and since that timePresident Nixon has appointed two new Justices to the Court including William Rehnquist.1. In re Carpenter, 239 So.2d 506 (Fla. 4th Dist. 1970).1971]UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIaffirmed in part the holding of the Fourth District and held: When apresumption of undue influence is raised, only the burden of productionis shifted, not the burden of persuasion, and that presumption is neutral-ized when the proponent presents a reasonable explanation for his activerole in the preparation of a will. At the same time, the supreme courtoverruled the holding of the district court of appeal regarding the effectof evidence once a presumption is rebutted and held: Even when a pre-sumption of undue influence is rebutted, the evidence which supportedthe rebutted presumption does not disappear; such evidence will still beavailable to support an inference of undue influence. Consequently, whatconstitutes a confidential relationship and undue influence in any partic-ular situation is a factual question to be determined by the trier of fact,not by the appellate courts. In re Carpenter, 253 So.2d 697 (Fla. 1971).The use of the ambiguous statement, a presumption shifts the bur-den of proof, continues to cause judicial confusion since the term, burdenof proof, often conveys a double meaning in Florida.2 The instant deci-sion reflects the view that the burden of persuasion remains with thecomplainant while only the burden of production shifts from one partyto the other during trial. Under this view, the presumption does not re-lieve the complainant of the burden of persuasion. Rather, it merelytransfers the burden of production to the opposing party once a presump-tion has arisen in favor of the complainant.3While the general rule is that a presumption does not shift the bur-den of persuasion, Florida courts have "created an exception to thegeneral rule . .. applicable only to will contests."4 This exception hasbeen applied despite the contrary language of Florida Statutes section2. In re Ziy, 223 So.2d 42, 43 (Fla. 1969), quoting Alabama G.S. R.R. v. Hill, 34 Ala.App. 466, 468, 43 So.2d 136, 137 (1949) [citing "Shifting of Burden," 10 R.C.L. 897, § 45]:The term "burden of proof" has two distinct meanings. By the one is meant theduty of establishing a given proposition or issue by such a quantum of evidence asthe law demands in the case in which the issue arises; by the other is meant theduty of producing evidence at the beginning or at any subsequent stage of the trial,in order to make or meet a prima facie case. Generally speaking, the burden ofproof, in the sense of the duty of producing evidence, passes from party to party asthe case progresses, while the burden of proof [production], meaning the obligationto establish the truth of the claim by a preponderance of evidence, rests through-out upon the party asserting the affirmative of the issue, and unless he meets thisobligation upon the whole case he fails.3. In re Ziy, 223 So.2d 42, 43 (Fla. 1969).4. In re Carpenter, 253 So.2d 697, 703 (Fla. 1971). This statement, however, is notentirely correct. This exception has been applied in situations other than will contests whereparties share a confidential or fiduciary relationship. A majority of jurisdictions, includingFlorida, have applied the exception in cases involving transactions between corporate of-ficials and the corporations they represent. See Pepper v. Litton, 308 U.S. 295 (1939);Orlando Orange Groves v. Hale, 107 Fla. 304, 144 So. 674 (1934); Chipola Valley RealtyCo. v. Griffin, 94 Fla. 1151, 115 So. 541 (1927); Shlensky v. South Parkway Bldg. Corp.,119 Ill. 2d 268, 166 N.E.2d 793 (1960). A majority of jurisdictions also apply the except-tion to transfers of inter vivos gifts between principal and fiduciary. See 38 Am. JUR. 2dGifts §§ 92-94 (1968), citing Amado v. Aguirre, 63 Ariz. 213, 161 P.2d 117 (1945); Mc-Donald v. Hewlett, 102 Cal. App. 2d 680, 228 P.2d 83 (1951). This is presently the lawin Florida. Adams v. Sanders, 139 Fla. 730, 191 So. 312 (1939); Lesperance v. Lesperance,233 So.2d 859 (Fla. 3d Dist. 1970).CASES NOTED732.31 (1969).1 Under this exception, when a will contestant demon-strated facts which raised a presumption of undue influence, there wasa shift of the burden of persuasion from the contestant to the proponentof the will." The basis for this exception had apparently developed be-cause of the nature of the relationship7 existing between a testator and abeneficiary who had enjoyed a confidential relationship with the testator.Despite concern for this special relationship, Carpenter has eliminatedthis exception. Although the supreme court advanced a variety of rea-sons for its decision, the desire for conceptual uniformity in the law ofpresumptions was apparently the paramount consideration.Notwithstanding the benefits to be derived from such uniformity,the result in Carpenter may contravene public policy considerationswhich demand that fiduciaries and confidants exercise good faith in theirdealings. Thus, fiduciaries who reap unusual profits as a result of theirconfidential and privy status naturally arouse a degree of distrust. Whensuch suspicion arises, the better policy would require the fiduciary toprove that the transaction was conducted in complete good faith.' Thesecritical public policy considerations appear to have been completelyignored in the two appellate decisions in Carpenter since neither thesupreme court nor the district court of appeal cited even one case deal-ing with a confidential or fiduciary relationship to support their holdings. 9The "undue influence" exception (in will contests) was recently applied by the DistrictCourt of Appeal, Fourth District, in Wrobble v. Walda, 217 So.2d 341 (Fla. 4th Dist. 1969).Only a small minority of jurisdictions have applied this exception as Florida has done, andFlorida may have begun doing so by accident. At one time, the factors raising a presump-tion of undue influence in inter vivos gift transfers and will preparations were identical,and proof that the donee or primary beneficiary had a confidential or fiduciary relationshipwith the donor or testator was sufficient to raise the presumption. The factors have re-mained the same for inter vivos gift transfers, but in the case of wills, the requirement ofproof of active participation in preparation was added in the case of In re Aldrich, 148Fla. 121, 3 So.2d 856 (1941). The similarity of factors would seem to indicate that theeffect given presumptions in inter vivos gift transfers was extended to situations whereundue influence was raised in connection with the preparation of a will.5. FLA. STAT. § 732.31 (1969) provides:In all proceedings contesting the validity of a purported will, whether before orafter such will is admitted to probate, the burden of proof, in the first instance,shall be upon the proponent thereof to establish, prima facie, the format executionand attestation thereof, whereupon the burden of proof shall shift to the contestantto establish the facts constituting the grounds upon which the probate of suchpurported will is opposed or revocation thereof is sought. (Emphasis added.)6. Consequently, the county judge in the instant case properly applied the body ofexisting case law as it stood in Florida at the time he handed down his decision. See In rePalmer, 48 So.2d 732 (Fla. 1950). But see FLA. STAT. § 732.31 (1969), supra note 5.7. See, e.g., Peacock v. Dubois, 90 Fla. 162, 105 So. 321 (1925) (transfer of a deed).8. Marquette v. Hathaway, 76 So.2d 648 (Fla. 1954). The fiduciary proves the validityof the transaction by showingthat the other party had competent and disinterested advice or that he performedthe act or entered into the transaction voluntarily, deliberately and advisedly, know-ing its nature and effect, and that his consent was not obtained by the reason ofthe power and influence to which the relationship might be supposed to give rise.Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 197, 91 N.E. 1041, 1047 (1910),quoting Uhlich v. Muhlke, 61 Ill. 499, 511 (1869).9. See Guile v. Boggs, 174 So.2d 26 (Fla. 1965) and Leonetti v. Boone, 74 So.2d 5511971]UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXV1The conclusion reached by the supreme court in Carpenter was cer-tainly not the only alternative open to the court. Dean Wigmore, for one,has balanced the vying considerations of public policy and uniform ap-plication of the law of presumptions and developed a much more sensibleapproach.'" This approach reconciles the special rule in will contestswhich shifts the burden of persuasion to the proponent when an undueinfluence presumption arises with the general rule which holds that theburden of persuasion never shifts when a presumption is raised, only theburden of production. Under the Wigmore approach, the proponent ofthe will must establish all elements essential to its validity. Of course,good faith is mandatory, and where the proponent of the will is a fidu-ciary, he carries the burden of persuasion on that element.Generally, for reasons of public policy, courts permit a presumptionof a will's validity to arise when it appears from evidence presented thatthe will has been properly executed. Such a presumption, however, restsupon other presumptions including that of the testator's sanity and theabsence of undue influence, both essential to the validity of a will. Theseinitial presumptions shift only the burden of production to the will con-testant. If a contestant produces evidence of insane acts by the testatoror of undue influence by the fiduciary, the presumption of validity is re-butted. The proponent must then present positive evidence of the sanityof the testator or the absence of undue influence because such proof isessential to the validity of any will. Under this view, since the burden ofpersuasion never shifts from the proponent of the will, he must produceevidence to outweigh any evidence produced by the contestant.Despite the insistence of the Supreme Court of Florida that pre-sumptions do not shift the burden of persuasion, Carpenter gives pre-cisely that effect to the statutory presumption of validity which arises assoon as a will is shown to have been properly executed." This is a partic-ularly novel position since ordinarily statutory presumptions have nogreater effect than court-created presumptions which serve only to shiftthe burden of production. In fact, this was the holding in Leonetti v.Boone,12 which interestingly enough was cited as primary authority in(Fla. 1954) (statutory presumption that person driving a car does so with the owner'sconsent); Nationwide Mut. Ins. Co. v. Griffin, 222 So.2d 754 (Fla. 4th Dist. 1969) (pre-sumption of natural death rather than suicide) ; Seaboard A.L. R.R. v. Lake Region PackingAss'n, 211 So.2d 25 (Fla. 4th Dist., 1968); Shaw v. York, 187 So.2d 397 (Fla. 1st Dist.1966) (presumption of negligence in rear end auto collision); Locke v. Stuart, 113 So.2d402 (Fla. 1st Dist. 1959) (presumption of validity of tax deed).10. See J. WIcmORE, Wi0MoIE ON EVIDENCE §§ 2502-03 (3d ed. 1940); J. WIGMORE,A STUDENT'S TEXTBOOK OF THE LAW OF EVIDENCE §§ 453-54 (1935).11. In re Carpenter, 253 So.2d 697, 702-04 (Fla. 1971), citing FLA. STAT. § 732.31 (1969).12. 74 So.2d 551 (Fla. 1954). In this decision, the Supreme Court of Florida adoptedlanguage from 20 AM. JUR. Evidence § 133 (1939), stating:Statutes of the various states contain numerous enactments creating or declaringpresumptions or specifying that certain facts shall constitute prima facie evidenceof other facts, the effect of which is to relieve the party in whose favor they operateof the necessity of producing evidence upon an issue and cast upon the other partythe burden of going forward with the evidence. They do not, however, shift theCASES NOTEDCarpenter. Nevertheless, the Carpenter court viewed the statute and itslegislative history as intending to place the burden of proving the non-admissibility of a will to probate on the contestant.13While the statutory construction appears to do no more than requirethe contestant to prove the affirmative of his proposition, in reality it hasa much greater effect. Now, the contestant must raise his objections tothe will in a fashion similar to pleading an affirmative defense. This is apeculiar development since the will contestant is not seeking to avoid theeffect of a valid testamentary instrument by alleging undue influence inthe same fashion that a tortfeasor seeks to avoid liability by pleading con-tributory negligence. Rather, the will contestant is directly challengingthe validity of the instrument.The supreme court, however, justifies its result in Carpenter by stat-ing that the decision will lendgreater credence to the traditional view in Florida that a prop-erly executed will should be given effect unless it clearly ap-pears that the free use.., of the testator's sound mind ... wasin fact prevented by deception, undue influence or othermeans.'4Perhaps the need for certainty and respect for a testator's intent shouldoverride the potential concern for overreaching by fiduciaries or confi-dants in will preparations. Even so, courts advocating the desirability ofadopting a presumption of validity for testamentary instruments basedupon public policy considerations should not ignore those same considera-tions as they relate to the exploitation of confidential relationships byfiduciaries in will matters. It remains to be seen whether Carpenter willbe extended to other cases involving confidential relationships. Hope-fully, though, the unique relationship of confidence and influence be-tween certain parties which by its very nature militates for special treat-ment and protection will again be recognized, and the present decisionwill be limited to cases involving family relationships. In any event, fu-ture changes in the law which apply to areas of public concern whichrequire as high a degree of protection as do probate matters should notbe made for the purpose of mere conceptual uniformity.MICHAEL C. SPRINGburden of proof, but simply permit one to make a prima facie case in a way thathe could not make it without the statute. (Emphasis added.)Id. at 553.13. In re Carpenter, 253 So.2d 697, 704 (Fla. 1971).14. Id. (emphasis added by court).1971]

Will Contests: The Shifting Burdens of Proof

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Will Contests: The Shifting Burdens of Proof

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