By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Litigation Attorney
I have written three prior articles on the subject of undue influence and discussed New Jersey case law where claims of undue influence were raised and decided. You can reach each of these articles here: (Part 1) (Part 2) (Part 3) This post will address what standard of proof and evidence is required by law to win (or lose) a case alleging undue influence.
Undue influence cases are challenging for both the accuser and the defendant. A claim of undue influence involving a will, trust, Power of Attorney or the making of a lifetime “gift”, must be clearly established by the person asserting it, or defending against it. “Undue influence, is a form of fraud and must be proven by clear and convincing evidence.” However, New Jersey courts have recognized that this burden of proof can be shifted if the accused “party stands in a confidential relationship to the maker of the gift”. To create a presumption of undue influence, the burden is on the contestant to show “the will benefits a person who stood (stands) in a confidential relationship to the person who made the gift and circumstances of a suspicious character were present in the making of the gift or change in estate plan which requires an explanation.”
When you read the case law it is not clear from this case law what standard of proof is necessary to sustain a presumption of undue influence, but our Appellate Division has held that to establish a confidential relationship when challenging (for example) “the ownership of a joint survivorship bank or brokerage account on the death of one party,” that a preponderance of evidence is all that is necessary. Preponderance of the evidence means a fact is more likely to be true than not to exist. Furthermore, “suspicious circumstances, for purposes of evidence and the burden of proof, need only be slight.” Once this initial burden has been satisfied, it then shifts the responding burden of proof to the accused defendant to show through a preponderance of the evidence why he or she did not unduly influence the making of the gift, joint account, last will or trust.
When trying to establish this presumption of undue influence you must show something more than mere persuasion by the accused. Instead, you must show that he or she “destroyed the free agency and…constrain him or her to do what he or she would not otherwise have done in the transfer of his or her worldly assets to someone else”.
Suspect undue influence, fraud or other unethical conduct? If so, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at email@example.com. Please ask us about our video conferencing consultations if you are unable to come to our office. He welcomes your inquiry.