In New Hampshire, we have a concept called self-proving wills. A will is self proving as​ ​long as it meets the requirements set forth in RSA 551-A. To qualify as self-proving, the signatures of the testator and witnesses must be followed by a sworn acknowledgment made before a notary public or justice of the peace or other official authorized to administer oaths. But what happens if someone with standing wants to contest the will? Let’s say they want to raise the issue OF “testamentary capacity” (the ability to write a will) or “undue influence” (wrongdoing on the part of a beneficiary)?

Under New Hampshire law, any party interested in a will can have the probate of a will which has been proved without notice “re-examined”. This, then, brings about a proceeding called “proving the will in solemn form.” The request to prove the will in solemn form has to be filed within six months of the will being admitted to probate. Any issue related to the execution of a will, testamentary capacity, or fraud, duress, or undue influence is then tried before the probate court.

But who has the burden of proof?

That burden lies on the proponent of the will as​ ​opposed to the person contesting it. This means that the person seeking to admit the will to probate has the ultimate burden of proving the testator had testamentary capacity and was free of undue influence. The proponent of the will is aided by a rebuttable presumption. In other words, it is presumed that the testator was sane and presumed that the testator was free from undue influence.

But what happens if an opponent introduces evidence suggesting the contrary is true?
If the opponent of the will produces sufficient evidence to rebut the presumption of
validity, we have a “tennis match.”

This is because in New Hampshire, the court has long held that every person is presumed to be sane, until there is some evidence shown to rebut that presumption. If the presumption is rebutted, the burden of proving capacity and everything else (such as being free from undue influence) remains on the will proponent. Evidence need only be introduced if the opponent introduces sufficient evidence to the contrary.

Will contests feel like tennis matches. The game begins with the ball on the opponent’s side of the court. The opponent then hits the ball back and if the ball lands on the proponent’s side of the court, it is up to the proponent to hit it back again.

Tennis, anyone?