In re Estate of Herbert (Motion for Reconsideration and Order of Amendment)

IT IS HEREBY ORDERED that the opinion of the court, filed March 17, 1999, is amended as follows (bracketed portions of text are deleted; underlined portions are added):

The record reveals a question of whether the burden of proof shifts from the contestant to the proponent after the contestant puts forth sufficient evidence of undue influence. The plain language of HRS § 560:3-407 provides that "[c]ontestants of a will have the burden of establishing . . . undue influence, [and u]nless the burden of proof is changed by other provisions of law, parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof." [No other provision of Hawai`i statutory law addresses the burden of proving undue influence. Therefore, under Hawai`i law, the contestant's burden does not shift.] However, the legislative history to Section 560:3-407 provides:

15. Section 560:3-407 is amended to make clear that the burden of proof in contested cases may shift in the manner prescribed by the rules of evidence.

Reason for change: The Commentary to the model UPC notes that the UPC language sets forth "what is believed to be a fairly standard approach to questions concerning burdens of going forward with evidence in will contest cases." However, the model UPC language does not on its face allow for the shifting of the burden of proof upon proof of certain facts. For example, once a contestant establishes that a testator lacked capacity, the proponent of a will which was thereafter executed has the burden of proving that the will was written during a lucid interval. See In re Coleman, 1 Haw.App. 136, 615 P.2d 760 (1980); Estate of Lopez, 25 Haw. 197 (1919). In addition, once it is established that the proponent of the will in a confidential relationship with the testator actively procured the execution of the will and unnaturally benefitted thereunder, the burden shifts to the proponent to prove a lack of undue influence. See Estate of Gelonese, 36 Cal.App.3d 854, 111 Cal.Rptr. 833, 838 (1974); cf. Teixeira v. Teixeira, 40 Haw. 631 (1995) ("The burden of proof where there is a transaction between those standing in a fiduciary relationship is upon the person who held the position of superiority and influence by virtue of the relationship." at 637)[.] Under the rules of evidence, the presumption of undue influence is one which changes the burden of proof since it is a presumption adopted to implement a public policy. See Hawai`i Rules of Evidence, Rule 304(a); Estate of Gelonese, supra.

Your Committee's additional language is intended to make clear that the burden of proof in will contest cases is subject to change upon proof of requisite facts in the same manner as it is subject to change in other areas of law under the rules of evidence.

Presumptions imposing burden of proof. (a) General Rule. A presumption established to implement a public policy other than, or in addition to, facilitating the determination of the particular action in which the presumption is applied imposes on the party against whom it is directed the burden of proof.

Therefore, under the current version of HRS § 560:3-407, the burden of proof shifts. However, the instant trial occurred in 1992, when the former version of HRS § 560:3-407 was operative and when the burden of proof did not shift. See Montoya v. Torres, 823 P.2d 905, 911 (N.M. 1991) (citing In re Estate of Foster, 699 P.2d 638, 641 (N.M. Ct. App.), cert. denied, 700 P.2d 197 (N.M. 1985) (burden of persuasion does not shift but remains with party alleging undue influence)); In re Estate of Novak, 458 N.W.2d 221, 226 (Neb. 1990) (recognizing a Nebraska statute, adapted from the Uniform Probate Code, that provides that the burden of proving undue influence remains with the contestant(s) of the will). [Cf., e.g., Welton v. Gallagher, 2 Haw. App. 242, 247, 630 P.2d 1077, 1082 (App. 1981), aff'd, 65 Haw. 528, 654 P.2d 1349 (1982) (recognizing a presumption of undue influence in the context of a fiduciary relationship accompanying an inter vivos gift).]

HRS § 560:3-601 (effective April 17, 1990) provided, in pertinent part, "that a nonresident may be eligible to serve as a personal representative in this State if the nonresident submits to the jurisdiction of the Hawaii courts[.]" [HRS § 560:3-601(b) also provides that:

the registrar or court shall determine whether or not the proposed personal representative of the estate had the experience and capacity to effectively serve as personal representative, and whether or not the character, financial responsibility, and general fitness of . . . the proposed personal representative are such as to command the confidence of the community and warrant the belief that the office of the personal representative will be honestly and efficiently managed.]

IT IS FURTHER ORDERED that the Clerk of the Court shall incorporate the foregoing changes in the original opinion.

IT IS FINALLY ORDERED that Appellant's motion for reconsideration is denied in all other respects.