Haynes v. First National State Bank of New Jersey 87 N.J. 163, 432 A.2d 890 (1981) Dutrow was a rich widow. She lived with her daughter (Haynes) and Haynes' children for many years, until Haynes' death. Haynes' children were a disappointment to Dutrow because they dodged the Vietnam draft. After Haynes' death, the elderly Dutrow moved in with her other daughter, Cotsworth. Prior to moving in with Cotsworth, Dutrow's will had been pretty evenly split between Haynes' family and Cotsworth's family. However, soon after moving in Dutrow made a new will that strongly favored the Cotsworth side. The previous wills were prepared Stevens, who testified that Dutrow told him that she was being pressured by Cotsworth. Dutrow's latest will was prepared by Stevens and another lawyer named Buttermore just so happened to also be the Cotsworth's attorney! Conflict of interest maybe...? Stevens wrote Buttermore a letter accusing him of undue influence. Dutrow made a few codicils to the will including an in terrorem clause. By the time all the codicils were executed, instead of splitting the estate $4M for Cotsworth's children and $4M to Haynes's children, the estate now gave $10k to Haynes' children and the rest went into a trust controlled by Cotsworth. A codicil is an amendment to a will. An in terrorem clause says that anyone who contests the will is automatically disinherited. Dutrow died, and Haynes' children contested the will. Haynes' children claimed that Dutrow was suffering from undue influence. The Trial Court found the will to be valid. Haynes' children appealed. The Trial Court found that there was a presumption of undue influence, but that the defense had rebutted that presumption at trial. The Court found that while markedly different from previous plans, Dutrow's final will was not unnatural or instinctively unsound. The Trial Court did find that the in terrorem clause was unenforceable. The Appellate Court affirmed. Haynes' children appealed. The Appellate Court not only found that the will was valid but also that the in terrorem clause was enforceable. The New Jersey Supreme Court remanded the case of a new trial. The New Jersey Supreme Court listed two factors for establishing a presumption of undue influence: A confidential relationship between the testator and the beneficiary. The presence of suspicious circumstances. Once a presumption of undue influence is established, the burden shifts to the proponents of the will to provide a rebuttal. The Trial Court felt that they had. The New Jersey Supreme Court felt that Buttermore's conflict of interest created the need for a higher burden of proof than normally exists in civil litigation. Therefore, the proponents of the will need to establish by clear and convincing evidence that there was no undue influence. Since the Trial Court had used an incorrect burden of proof, the case was remanded back for a new trial. The New Jersey Supreme Court also declined to enforce an in terrorem clause in a will or trust agreement where there is probable cause to challenge the instrument. The burden of proof for undue influence is always on the person contesting the will (aka the contestant). However, if they show that there is a confidential relationship, and the presence of suspicious circumstances, then the burden shifts to show that there was no undue influence. You can rebut the presumption with a preponderance of evidence if there is only one confidential relationship. If there are two relationships, you must rebut with clear and convincing evidence. There are five categories of confidential relationships: Priest -Penitent Lawyer-Client Doctor-Patient Guardian-Ward A Relationship of Trust In this case, Buttermore was her lawyer and Cotsworth was in a relationship of trust. The two of them together counted as having two confidential relationships, which requires the higher standard of proof. Buttermore had a conflict of interest and should have terminated representation. In order to rebut the presumption, you have to show that the mind of the testator was able to resist the undue influence. In this case, after being remanded for a new trial, Cotsworth and Buttermore were successfully able to rebut the presumption and got the $$$.