Will Contests Part II: The Burden of Proof May Be On The Defendant

February 3, 2015Articles Garden State Gavel Blog

Several weeks ago, I wrote about how to avoid Will contests in Part I of my series on Will contests. This week we will discuss one of the many reasons why it is important to avoid Will contents.

Those challenging wills often assert that the beneficiary of the Will practiced “undue influence” against the testator. Undue influence is defined as “mental, moral, or physical exertion which has destroyed the free agency of the testator by preventing the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another.” Gellert v. Livingston, 5 N.J. 65 (1950).

Essentially, undue influence requires a showing that the beneficiary of the Will pressured the testator to make a Will that was not of the testator’s own free will.


Many people would be surprised to learn that under New Jersey law the burden of proof is often on the defendant (proponent of the Will) to demonstrate that there was no undue influence. The New Jersey Supreme Court, in Haynes v. First National State Bank of NJ, 87 N.J. 163 (1981), held that there is a presumption of undue influence and that the burden shifts to the proponent of the Will if the proponent stood in a confidential relationship with the testator and there are additional suspicious circumstances present.

It is easy to prove a confidential relationship. The Will contestant needs to prove that a beneficiary of the Will is a caregiver, a spouse, a child or anyone else who the testator trusts and relies upon.

Suspicious circumstances are also easy to prove. All that is typically necessary is to demonstrate that there was a significant change between Wills, that the beneficiary was involved in procuring the new Will or that there was an unnatural disposition (e.g. a child or spouse was disinherited) or any other circumstances that the Will contestant’s lawyer can devine from the facts.

When defending a client who is the proponent of a Will in a Will contest, an experienced trial lawyer will attempt to secure a range of witnesses to testify that the testator was in possession of his mental faculties, was strong willed, and not subject to being pressured. Defense counsel will often rely upon the lawyer that prepared the Will to testify as to the circumstances of its creation.


In short, will contests often result in the unusual circumstance of the defendant having to bear the burden of proof. As a result, estate planning documents must be carefully prepared particularly when there is a potential for a challenge.