Burden of Proof When Challenging Gifts,

Trusts and Wills Because of Lack of Capacity,

Undue Influence and Similar Grounds

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Abuse Attorney

Niemann-NJ Elder Abuse LawyerThe law presumes that each of us has the ability to decide who we give our property to either by gift(s) or by our Last Will & Testament.  Whoever challenges that right has the burden of producing evidence to challenge the appropriateness of the gift(s) made.  This is known as a Burden of Proof.

Understanding the Term “Burden of Proof” to Establish Undue Influence

Generally, the burden of proving undue influence lies with the person challenging the gift, unless the beneficiary was in a confidential relationship with the testator and there are suspicious circumstances surrounding that relationship.

A confidential relationship includes not only cases of a legal or fiduciary relationship, such as guardian, power of attorney, conservator, principal and agent and trustee, but also in cases where a relationship of trust and confidence actually exists.

In the case of gifts, once the confidential relationship and suspicious circumstances are proven, the burden shifts to the accused who must then prove by “clear and convincing” evidence that there was no undue influence.

1.  Burden of Proof, Undue Influence and Gifts Made While Alive  

Often times, I am presented with the following case.  An elderly or frail person is “alleged” to have made a gratuitous gift(s) to their Power of Attorney, child, friend, etc.  Generally a family member is concerned that the elderly/frail person is getting ripped off and wants to challenge the gift or stop future gifting.  They want my opinion.

Here’s some background on how I look at and analyze such a case and what I must consider under New Jersey law:

Was the gift made while the person was still alive. This is called an “Inter Vivos” gift (a legal term for gifts made while a person is alive).  These gifts are often viewed more “suspiciously “. As one Judge stated, “a person is not likely to give away while alive inter vivos what he can still enjoy”.  But that is not always the case.  Many parents and elderly people do want to make lifetime gifts.

A showing of a confidential relationship and/or proof that the beneficiary dominated the will of a person will satisfy the initial burden.  If that burden is met then; the burden of proving a legitimate purpose behind the transfer is on the party who asserts that a valid gift was made.  The recipient of the gift must show by “clear and convincing” evidence was there was no undue influence, and also that the transfer was well understood by both parties.

If a donor is dependent upon a person for his/her bathing, mobility, grooming, toileting, nutrition and medications or for the necessities of life and makes a “gift” of most of his or her assets, a presumption can arise that the donor did not understand the consequences of his or her act or was subjected to undue influence.

For Example:  When the donee (a recipient of the gift) is the dominant person in the relationship, the burden is upon him or her to show by clear and convincing proof that the gift was the voluntary and intelligent decision of the donor.  As compared to:  If a donor is physically or mentally weak and the   donor is left without adequate financial support after the transfer, independent advice is often required.

2.  Joint Bank Accounts and Undue Influence in New Jersey

Although joint bank accounts are inter vivos transfers, there is a different standard of proof than with other inter vivos transfers because joint bank accounts are governed in New Jersey by Multi –Party Deposit Account Act.

Under the Act joint accounts belong to the parties in the same proportion as the sums deposited by each party into such account unless: The terms of the contract indicate a different  intent or  there is clear and convincing evidence that at the time the account was created the intent of the parties was different than  proportional ownership.

The act creates a rebuttable presumption of survivorship in joint accounts.

Even if no undue influence is found, a New Jersey  court can look at all the direct and circumstantial evidence available to determine whether the decedent intended to create survivorship rights to the joint account holder.

3.  Evidence Necessary to be Successful in Challenging a “Gift” Litigation

The mental condition (medically documented) of the donor prior and subsequent to the drafting of the will or the making of the lifetime gift often times demonstrates the testator’s/donor’s legal capacity at the time the will was made or the gift effected.

Any statements and written communications made prior or subsequent to the creation of the will or the making of the gift may also demonstrate the person’s intentions and legal capacity to make a gift.

Fact witnesses – These witnesses can provide important supporting evidence to demonstrate the physical and mental capacity of the decedent or maker of a gift before their death.  Usually these witnesses are close personal friends of the decedent or family member(s).

Attesting Witnesses to a Will or Trust – Opinions of witnesses who were present at the signing of the will are afforded a great deal of credibility and believability as these witnesses were present and viewed the person during the will, trust or gift execution.

Attorney as Witness – The attorney is a useful witness as he or she observed the testator/donor from the time of the initial client meeting, through the drafting of the relevant planning documents the time the document was signed.

Treating Physician – A physician may qualify as both a fact witness and an expert witness, and the physician may testify to all medical treatment(s) including mediations provided to the decedent and all conversations with the decedent.

Decedent’s Hospital and Medical Records – These records may be introduced to demonstrate the capacity of the testator/donor received at the hospital.

4.  Procedural Issues Available to Contest Testamentary and Trust Undue Influence Claims

A person challenging a will or trust is able to file a written objection (a caveat) to the will prior to a will being offered for probate.  This caveat filing prevents the surrogate from probating the will.  It deprives the Executor of the will from administering the Estate. The proponent of the will then must seek judicial approval in the Chancery Division, Probate Part of the Superior Court of New Jersey to authorize and approve probate.

If the will already has been admitted to probate by the surrogate, the contestant must file a complaint and order to show cause with the surrogate’s court seeking to set aside the probate judgment of the surrogate.


Fred Niemann, Elder Abuse Lawyer in New Jersey

Fred Niemann, Elder Abuse Lawyer in New Jersey

If you are an executor, trustee, beneficiary or a person who has to address a claim by someone that an elderly person (or other) was taken advantage of or financially exploited by a person, then contact Fredrick P. Niemann toll-free at

(855) 376-5291

or email him at


to meet and discuss your concerns.  You’ll find him easy to talk to and very knowledgeable about the law in New Jersey on this subject.




How Mr. Niemann Will Analyze Your Case – Burden of Proof to

Contesting Gifts, Trusts and Wills on Lack of Capacity, Undue

Influence and Similar Grounds