Formal testacy proceedings; burdens in contested cases.
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution, death, testamentary capacity, and venue. Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.
Source:Laws 1974, LB 354, § 109, UPC § 3-407.
Contestants of a will have the burden of establishing undue influence and carry the ultimate burden of persuasion. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
This section did not change the rules concerning the effect of a presumption of undue influence established by case law existing prior to the adoption of the Uniform Probate Code. In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990).
While a nonexpert witness who is shown to have had intimate acquaintance with a deceased may be permitted to state an opinion concerning the mental condition of the deceased, the person testifying must give the facts and circumstances upon which the opinion is based. In re Estate of Thompson, 225 Neb. 643, 407 N.W.2d 738 (1987).