Rules Governing Presumptions

            Depending on your jurisdiction, a court will use one of two rules to govern the effect of a presumption, the “Thayer” theory or “Morgan” theory.  The Thayer theory declares that if the party who the presumption is asserted against produces evidence to dispute the presumption then the presumption disappears and does not impact the trial. The party who asserted the presumption retains the burden of factual persuasion throughout the process. When the Morgan theory is applied the burden of factual persuasion and the burden of production switch to the party that the presumption is asserted against. Both theories have appeared in Virginia courts, but recent cases show Virginia currently applies the Thayer theory when the presumption of undue influence is at issue. 

How Presumptions Effect a Case

            To establish a presumption of undue influence and survive a demurrer in a will contest, the party contesting the will must sufficiently allege: (1) the testator was elderly when the will was written; (2) the beneficiary stood in a relationship of confidence and dependence; and (3) there was at least a previous indication that the testator wanted to divide his estate in a manner contrary to the current will. If there is evidence to prove these elements at trial then it would survive a motion to strike. To make undue influence a jury issue at trial then the evidence must point to the fact that the person executing the will was deprived of his volition to dispose of his property as he wished.

            If the presumption is established the burden of production shifts to the party supporting the will. If the party is able to produce countering evidence the presumption disappears and the will contestant keeps the burden of producing clear and convincing evidence at trial. If no countering evidence is presented then the presumption will result in a favorable verdict for the contesting party. 

Example Case

         The case of Parson v. Miller provides an example of the material explained above. The decedent’s daughter (“Daughter”) sued the decedent’s niece (“Niece”) because the decedent executed a will a week before his death and left everything to Niece. Daughter was able to establish that the decedent was elderly when the will was made, he had a dependent relationship with Niece, and that the decedent had previously expressed an intention for Daughter to get his estate. To rebut the presumption Niece provided witnesses to show she had not tried to influence the decedent and the decedent was in a good state of mind until he died. This combined with Daughter’s unconvincing testimony led the Supreme Court of Virginia to say that there was no evidence to support a claim of undue influence and the jury should never have been instructed on it. Therefore, the motion to strike the evidence by Niece should have been granted. 

The Smith Strong Difference

The versatile lawyers at Smith Strong are capable of contesting a will, defending you against an undue influence claim, or advocating on your behalf for any estate or family law needs. If you do find yourself in need of our services please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee – Law Clerk

H. Van Smith
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