Trusts and Estates

Presuming too much?

The burden of proof in estates litigation

It is a near-universal starting point in civil litigation that "he who asserts must prove". In other words, the burden of proving a fact or of making out a cause of action is on the party advancing it, and will remain with that party regardless of the turns the evidence takes. There are certain exceptions: the common law doctrine "res ipsa loquitur" will apply in the rare instances where a court can infer negligence from the very nature of an accident or injury, in the absence of direct evidence on how any defendant behaved, because it appears that the "thing speaks for itself".

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