pjc-family-2024-lib

W ILL C ONTESTS

PJC 230.1

PJC 230.1 Burden of Proof (Comment) Placement of the burden of proof on certain issues related to will contests differs, depending on whether the will has been admitted to probate before the contest is filed. For those issues, the PJCs in this chapter provide alternative submissions for situations in which the will has not yet been admitted to probate and situations in which it has already been admitted. Before a will is admitted to probate, the burden of proof is on the proponent to establish the elements required for a valid will. See Tex. Est. Code § 256.152(a); Croucher v. Croucher , 660 S.W.2d 55, 57 (Tex. 1983) (testamentary capacity) (burden on proponent even though will has self-proving affidavit); Douthit v. McLeroy , 539 S.W.2d 351 (Tex. 1976) (execution); In re Estate of Danford , 550 S.W.3d 275, 281 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (execution and testamentary capac ity); In re Estate of Parrimore , No. 14-14-00820-CV, 2016 WL 750293, at *6 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op.) (testamentary intent). After the will has been admitted to probate, the burden of proof shifts to the contes tant to disprove at least one element required for a valid will. See In re Estate of Woods , 542 S.W.2d 845, 846 (Tex. 1976) (burden is on contestant to prove lack of tes tamentary capacity after will has been admitted to probate); Lee v. Lee , 424 S.W.2d 609 (Tex. 1968); Cravens v. Chick , 524 S.W.2d 425 (Tex. App.—Fort Worth 1975, writ ref’d n.r.e.). The burden of proving undue influence or fraud is on the party contesting the will, regardless of whether the contest arises before or after the admission of the will to pro bate. Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963). But see In re Estate of Danford , 550 S.W.3d at 282 (“Once a contestant presents evidence of a fiduciary rela tionship, a presumption of undue influence arises and the will proponent bears the bur den to produce evidence showing an absence of undue influence.”); In re Estate of Grogan , 595 S.W.3d 807, 818 (Tex. App.—Texarkana 2020, no pet.) (once evidence has been introduced that contradicts the presumption, “the presumption is extin guished,” and “[t]he case then proceeds as if no presumption ever existed”) (internal citations omitted). Cf. Tex. Est. Code §§ 751.022, 751.101 (relating to powers of attor ney).

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