In virtually all litigation, the party that commences the lawsuit, typically referred to as the plaintiff, bears the burden of proof to establish his/her claims for which they seek relief from the Court. A defendant’s role is essentially to defend against a plaintiff’s allegations without an affirmative obligation to prove the merits of their defense. In the context of probate litigation, however, the plaintiff may actually succeed in shifting the burden of proof to a defendant which would then require the defendant to prove the merits of its defense. This is referred to as shifting the burden of proof.

The circumstances under which the burden of proof might be shifted during a Will contest are discussed in the precedential case of D. Haynes vs. First National State Bank of New Jersey. In this matter, the New Jersey Supreme Court explained that the burden of proving undue influence during a Will contest lies with the contestant, unless the Will benefits one who stood in a confidential relationship with the decedent, and there are additional circumstances of a suspicious character that require explanation. In such cases the law creates a presumption of undue influence, and the burden of proof is shifted to the proponent which is typically the defendant.

The first necessary element to establish a presumption of undue influence is the existence of a confidential relationship between the Testator and the beneficiary. A confidential relationship exists when trust is reposed by reason of the Testator’s weakness or dependence, or when the parties are engaged in a relationship in which reliance is naturally inspired or does in fact exist. The second necessary element involves the presence of suspicious circumstances surrounding either the creation or execution of the Will, which in combination with a confidential relationship would shift the burden of proof to the proponent of the Will. These suspicious circumstances, however, need only be slight in nature. Once a presumption of undue influence has been established, the burden of proof shifts to the proponent of the Will, who must, under normal circumstances, overcome that presumption by the preponderance of evidence. Should they fail to overcome the presumption, the Will will be invalidated by the Court.

The definition of what constitutes a confidential relationship has also been carefully reviewed by the New Jersey courts. Although the nature of a confidential relationship is difficult to define, it encompasses all relationships whether legal, natural, or conventional in their origin in which confidence is naturally inspired or in fact reasonably exists. A confidential relationship encompasses situations where the relations between the parties appear to be of such a character so as to render it certain that they did not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence; or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage is thereby rendered probable. Where the parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain such an advantage. This burden shifting will come into play when a claim of undue influence is being pursued, and the plaintiff has established the existence of a confidential relationship, and moreover, the presence of suspicious circumstances surrounding either the creation or execution of the Will.

As such, during a Will contest it is important for both a contestant, as well as a proponent of a Will, to understand the possibility of the burden of proof being shifted. In the absence of proper preparation, it could be fatal to a party’s claims if they are unprepared. The retention of competent legal counsel to review and prepare for this issue is essential to a well-reasoned litigation plan, as the landscape during a trial may quickly change under such circumstances.

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At some point in our lives there may come a time when we need to rely upon another individual to assist us with managing our finances, managing our healthcare, or simply helping us with daily tasks. One question that typically arises concerns what is the best arrangement to enter into that will allow someone to assist you under such circumstances. The most common answer would be the execution of a power of attorney. Aside from a power of attorney, however, a guardianship may be more appropriate under certain circumstances. The purpose of this article is to discuss a few differences between these two distinct arrangements.

In general, a power of attorney is a written instrument pursuant to which the principal authorizes another individual to undertake actions on their behalf which typically involves their finances, real estate, or other real property. At times, people may also execute a health care power of attorney which allows another to make decisions concerning their health care or treatment. At the time the power of attorney is executed, the principal must be competent in order to enter into the arrangement whereby they grant a third party the discretion which is set forth in the instrument. The format, as well as the discretion allowed in a power of attorney, can vary greatly and is entirely dependent upon what the person issuing the power of attorney is willing to grant. As such, these agreements can be narrowly tailored to fit the circumstances for which they might be required. Once the power of attorney is executed, it can be utilized while the individual remains competent, or can or it can take effect should the principal becomes incompetent.

On the other hand, a guardianship is sought during a court proceeding during which an individual seeks to become the guardian for the alleged incapacitated person. In order for guardianship to be granted, it must be demonstrated that the alleged incapacitated person is incapacitated, and further, that they require the care or assistance of the person who is seeking to be guardian. There are also varying levels of guardianship and the application to the court may specifically depend upon whether the person needs a complete guardianship, or a lesser level of guardianship, such as a conservator to protect the assets of this individual. Once a person is installed as guardian, they essentially step into the shoes of the incapacitated individual and may take actions on their behalf. The guardian, however, remains subject to review by the court and can be removed for cause if there is an abuse of these powers. During a guardianship proceeding, other individuals may wish to become the guardian of the alleged incapacitated person, and thus, they have the right to either contest the proceeding or to seek to become guardian themselves. This process differs from a power of attorney whereby the power of attorney is designated by the principal prior to the time of incapacity.

It is not unusual when individuals execute powers of attorney that they specifically designate who they wish to serve as their guardian should they become completely incapacitated, or in the context of a guardianship proceeding. Generally, it is our recommendation that a power of attorney be prepared by a person prior to the time that they may become incapacitated in order to deal with any future contingencies. It is also suggested that this power of attorney designate the potential guardians should they become incapacitated. On the other hand, if a sudden incapacitation arises due to an unfortunate event, then the only option would be to seek a guardianship as discussed above. Under either circumstance, however, the person who is acting on behalf of the incapacitated person owes them a fiduciary duty to act in their best interest. When acting as a fiduciary, you should be aware that certain requirements are mandated by statute and must be closely adhered to.

Should you wish to grant a power of attorney to another, or should you be a person seeking a guardianship on behalf of an alleged incapacitated person, it is strongly suggested that you consult with competent counsel. The attorney will be able to advise you as to not only the process, but moreover, your rights and responsibilities with regard to same. Depending upon the circumstances, one relationship may be preferable to the other.

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It is very typical for a parent or spouse to grant another individual, which is usually a family member, a power of attorney to assist them should there arise a time when they become either mentally incapacitated or physically unable to attend to necessary tasks in their lives. Although powers of attorney can be extraordinarily helpful to the person who needs the assistance, it should also be understood that if you undertake this duty to act pursuant to a power of attorney that certain statutory obligations are attached. One mandatory obligation that is imposed upon a person who may serve as a power of attorney is the duty to maintain accurate books and records of all financial transactions. The applicable New Jersey statute, which is set forth below, was enacted for the purpose of requiring a fiduciary to account in order to protect a principal from abuses of a power of attorney by an agent. This statutory requirement is not substantial, overburdensome, nor is it optional.

Pursuant to N.J.S.A. 46:2B-8.13

• An attorney-in-fact has a fiduciary duty to the principal, and to the guardian of the property of the principal if the principal has been adjudicated an incapacitated person, to act within the powers delegated by the power of attorney and solely for the benefit of the principal.
• The attorney-in-fact shall maintain accurate books and records of all financial transactions. The principal, a guardian or conservator appointed for the principal, and the personal representative of the principal’s estate may require the attorney-in-fact to render an accounting. The Superior Court may, upon application of any heir or other next friend of the principal, require the attorney-in-fact to render an accounting if satisfied that the principal is incapacitated and there is doubt or concern whether the attorney-in-fact is acting within the powers delegated by the power-of-attorney, or is acting solely for the benefit of the principal.

The statute is clear that the duty to account is not optional, but instead, is mandatory and there are no exceptions to this duty. As such, it is crucial that an agent under of a power of attorney maintain accurate books and records of all financial transactions they undertake when utilizing a power of attorney that is granted to them while assisting the person in need. Should an agent acting pursuant to a power of attorney fail to maintain such records they could ultimately be found liable to the principal of the power of attorney and/or the estate of this individual if they are unable to properly account. The demand for an accounting can be required by the principal who granted the power of attorney, a guardian or conservator appointed for the principal, and the personal representative of the principal’s estate. Once this request is made the burden now shifts for the agent under the power of attorney to fully and completely account.

For these reasons, it is strongly suggested that if you are either considering granting a power of attorney, or serving as an agent pursuant to one, that you consult with counsel as to your legal rights and obligations. With proper advice and a simple plan of action the process will not be burdensome. On the other hand, however, failure to abide by the statutory imposed obligations could have disastrous consequences.

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It is not uncommon for testators to execute Wills or to change existing ones close to the time of their death. What is more unusual, however, is when Wills are signed merely days or even hours immediately prior to their death. Under such circumstances, it renders it likely that a challenge might be levied against the validity of a Will if the changes deviate substantially from a previous Will which pre-dated the one that was signed when the decedent was in medical distress. Typically, it is the burden of the contestant who seeks to challenge the validity of a Will to demonstrate that the decedent lacked capacity to sign the Will. Under such circumstances, however, that burden can be shifted to the proponent of a Will to establish its validity.

In an old New Jersey case, Hildreth v. Marshall, the court explained that if there is evidence that a person was in medical extremis at the time that they signed their Last Will and Testament, there must be proof by clear and convincing evidence that the document was read to the testator and that he/she fully understood its character and contents. This well-established standard could shift the burden of proof to the proponent of a Will to establish its validity if the Will is challenged. This burden shifting would greatly favor the contestant of the Will, as the burden to demonstrate its validity would be difficult for the proponent to satisfy, and further, it would ensure that the contestant could seek to have any counsel fees he incurs in challenging the Will paid by the Estate.

Ultimately, whether the decedent had the requisite capacity to execute a Will when they were in medical extremis depends upon the available medical records, treating physician testimony, expert testimony, and fact witness testimony. Such a determination would likely require a trial on the merits, however, in the context of probate litigation may render the matter ripe for settlement between the parties to the Will contest in light of the battle that would be required. As such, when a challenge is levied as to the validity of a Will and there may be a question as to the decedent’s capacity to execute the document, it is important to review the circumstances under which the Will was executed, as well as the relevant medical records which might result in shifting the burden of proof. Such facts could result in a profound advantage being given to a party challenging the Will if evidence exists that the Will was executed by the decedent when he/she was in medical extremis.

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