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The Burden of Proof As to Testamentary Capacity in Wisconsin, 43 Marq

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Marquette Law Review Volume 43 Article 4 Issue 2 Fall 1959 The urB den of Proof as to Testamentary Capacity in Wisconsin Robert G. Ulrich Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Robert G. Ulrich, The Burden of Proof as to Testamentary Capacity in Wisconsin, 43 Marq. L. Rev. 230 (1959). Available at: http://scholarship.law.marquette.edu/mulr/vol43/iss2/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. COMMENTS THE BURDEN OF PROOF AS TO TESTAMENTARY CAPACITY IN WISCONSIN The phrase burden of proof is often heard in the practice of law, but its meaning frequently seems to escape definition. Though it may often be thought of as a theoretical concept of little practical value, it may be of great advantage to the practitioner to know the exact mean- ing of the term. Different meanings may be given to the phrase, but in this article an attempt will be made to make the different meanings stand in sharp focus. THE Two MEANINGS OF THE BURDEN OF PROOF- ORTHODOX POSITION Wigmore states that the phrase burden of proof is used in two senses, the burden in the primary sense and the burden in the secondary sense.' The burden of proof in the primary sense refers to the burden placed upon one party to ultimately bear the risk of nonpersuasion of the jury (or judge). 2 By the risk of nonpersuasion is meant the necessity of convincing the jury (or judge) in the last instance of the truth of one's contention. In an ordinary civil case, the judge will instruct the jury that the party with the burden in the primary sense has the burden of proving by a preponderance of the evidence the truth of his allegations. The burden of proof in this, the primary sense, never shifts.3 Wigmore also explains who generally has the burden of proof in the primary sense. Logically and as a good general rule, the location of the burden in the primary sense can be determined from the com- plaint. A party plaintiff will have the burden of proving the allegations of his complaint. If the defendant has an affirmative defense, he must prove his affirmative argument; he has the burden of proof on this 4 issue. As opposed to this burden of proof which remains upon the same party from the beginning to the end of the case, there is the burden in the secondary sense. The burden in the secondary sense refers to the burden of going forward with evidence to meet the evidence of the opposite party or to establish a prima facie case.- Initially the burden in the secondary sense is on the party with the risk of nonpersuasion of the jury (burden in the primary sense), although he may be able to meet this secondary burden through the aid of presumption.6 If he 1 WIGMORE, EVIDENCE, §2485 at 270, §2487 at 278 (3d ed. 1940). 2 Id. §2485 at 278. 3 Id. §2489 at 285. 4 Id. §2487 at 279 and 282. Id. at 279 and 281. 6Id. at 282-284. 19591 COMMENTS produces evidence sufficient to make out a prima facie case, that is, evidence which in the absence of contrary evidence is sufficient to go to the jury, it is said that the burden shifts. The other party who according to the general rule will be the defendant is now required to meet the prima facie case of his opponent (who under our assumption will be the plaintiff). He must meet this burden in the secondary sense or risk having a verdict directed against himself. Once he has met this burden it is often said that the burden shifts back again to the party who originally had the burden in the secondary sense. But Wigmore says that this is only true when the defendant introduces evidence of such a nature that the evidence of the plaintiff is rendered non-credible. In order to shift the burden the defendant must do more than to equalize the evidence. If he introduces evidence which effec- tively destroys the plaintiff's prima facie case and if in the absence of other evidence, a verdict would have to be directed against the plain- tiff, then the burden will shift again.7 It seems clear that the burden in the secondary sense refers, as Wigmore says, to the procedure by which the judge controls the evidence in requiring credible evidence for the jury's consideration (or for his consideration if he is trying the case)." The burden in the secondary sense thus is only for the judge's consideration. Once the necessary prima facie case has been made and there is substantial evidence upon which a reasonable jury could base a verdict, the jury will be instructed that a certain party has the burden of convincing them of the truth of his contention. But this, the burden in the pri- mary sense, is not considered until the burden in the secondary sense has been satisfied and the case is before the court or jury for final consideration. THE BURDEN OF PROOF AS TO TESTAMENTARY CAPACITY As we have stated, the general rule is that the plaintiff has the burden of proof in the primary sense as to the allegations of his com- plaint. At first glance, then, we might expect the proponent of a will to have the burden of proving testamentary capacity. In many states it seems that this is the case. Atkinson states that in the majority of states the proponent of the will has the burden of proof in the primary sense on the issue of testamentary capacity. 9 The burden is upon the proponent since as part of his case for proving the will he must prove that the testator had the necessary capacity to make it. The contestant does not have the burden of proof, even though he alleges incapacity as a ground for denial of probate. The proponent is aided in meeting his burden by the presumption of sanity that exists in many states.10 7 Id. at 279. 8 Id. at 273. 9 ATKINSON, WILLS §101 at 545 (2d ed. 1953). 'oId. at 546. MARQUETTE LAW REVIEWV. [Vol. 43 The rule is the same as to the due execution of the will; the proponent must prove due execution." But the rule is different when the claim of the contestant is that the testator was subject to undue influence. Here Atkinson says that the general rule is that the burden in the primary sense is upon the contestant. 12 This may be for the reason that undue influence is a form of fraud which has always been regarded as provable by the contestant. Perhaps too it is thought that the contestant has a better chance of proving undue influence. But whatever the reason, the burden as to mental capacity and the burden as to undue influence have been treated differently by the courts and so we might expect to find Wisconsin following along with the great weight of authority. In Will of Faulks13 the Wisconsin Supreme Court seems to adopt the orthodox position in toto. The Court states with great vigor its belief that the contestant has the burden of proof in the primary sense on the question of undue influence. 4 The Court also explains Wig- more's definitions of the two meanings of the burden of proof and seems to accept the orthodox position here also.' While bringing Wis- consin law into line with the majority position on the question of undue influence, the Court also adds the dictum that the burden of proof in the primary sense as to testamentary capacity is upon the proponent.' 6 This statement is clear and unambiguous, but unfortunately other cases on the subject are not clear and unambiguous. In the early case of Allen v.Griffin the Wisconsin Court stated: ...This Court has held and we think properly that in a case where a will is contested on the ground that the deceased was insane or otherwise incompetent to make a will at the time the same was made, the burden of proof is on the contestant and that the proponent need not in making out his side of the case, make full proof of the capacity of the testator, but may con- tent himself, by making out a prima facie case of capacity and introduce his further proofs on that question after the con- testant has made his proof. In a case which does not disclose any facts which tend to show incompetency, slight evidence of the competency of the testator is sufficient to put the contestant to his proofs upon that question.' 11 Id. at 543. 12Id. at 549. 13 246 Wis. 319, 17 N.W. 2d 423 (1943). 1 246 Wis. at 358. 15 Id. at 345. 16 Id. at 357. The Court states "The burden of proof is upon the proponent to establish by the fair preponderance and weight of the evidence that the instru- ment propounded is the genuine last will and testament of the deceased that he was competent to make a will, and that it was duly executed and attested with the requisite formalities .... This burden is upon the proponent to the end of the trial. (Emphasis added.) 1769 Wis.
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