Trust Contests: Clear and Convincing Evidence

It is generally difficult to prevail on a lawsuit to set aside and void a trust or will. “Wills are solemn acts” and “should be overturned only on proper and substantial evidence.” Switzer v. Switzer, 373 S.W.2d 930, 940 (Mo. 1964). 

The evidence to justify cancellation of a will or trust on grounds of incapacity and/or undue influence is usually circumstantial. Compounding the problem from the contestant’s view is that equity cases involving fraud, undue influence or mental capacity require “clear, cogent and convincing evidence.” Sebree v. Rosen, 349 S.W.2d 865, 872 (Mo. 1961). This is a higher level of proof than the typical civil case and requires evidence which “instantly tilts the scales in the affirmative when weighed against evidence in opposition; evidence which clearly convinces the fact finder of the truth of the proposition to be proved.” Peters v. General Motors Corp., 200 S.W.3d 1, 25 (Mo. Ct. App. 2006).


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