Will Contests

Heyward Rebecca Dodkin has recently published her note entitled The Relative Burdens for Wills Contested on the Basis of Confidential Relationships and Undue Influence,  57 S.C. L. Rev. 531 (2006), which discusses the case of Howard v. Nasser, 364 S.C. 279, 613 S.E.2d 64 (Ct. App. 2005).

Here is the conclusion of the article:

In Howard, the South Carolina Court of Appeals ultimately upheld the state’s general rule that the contestant of a will continues to bear the burden of proof throughout the entire will contest.  Although this decision may seem unexceptional, the court’s reliance on Dixon creates uncertainty in undue influence jurisprudence and forces the legal community to analyze the different presumption and burden of proof rules established for deeds and wills and the justifications behind each. There are strong arguments in support of maintaining separate rules for challenges to inter vivos and testamentary gifts, as the court did in Howard. However, there is also support for applying the stronger presumption to both deeds and wills.

If Howard goes to the South Carolina Supreme Court, it will be interesting to see whether the court will make a definitive statement distinguishing the burdens of proof that may shift in response to a showing of confidential relations. As unlikely as it may seem, South Carolina could join the ranks of those states having a single rule for inter vivos and testamentary transfers.  A ruling of this type would promote uniformity and uphold the public policy against abuse of confidential relationships. The South Carolina legislature could potentially address the confusion created by Howard by amending the state statute dealing with presumptions and burdens. The legislature could create new law in South Carolina stating that the burden of persuasion shifts to the proponent for all such contested transfers in which a presumption of invalidity arises once a confidential relationship is shown. More realistically, the legislature could supersede the ruling by codifying the language in the Restatement,  which specifically maintains separate rules for inter vivos and testamentary conveyances. The important policy considerations behind maintaining separate rules, especially the protection of testamentary freedom and avoidance of creating unrealistic evidentiary burdens, outweigh the arguments in support of modification of the rule. As it stands, the rule serves to promote social policy, while not giving an unfair advantage to the contestant of the will.