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Evidentiary Standard in Texas Probate Cases: Preponderance of Evidence

Most litigation matters are decided based on evidentiary standards. The winner is the one that presents enough evidence based on the evidentiary standard that applies.

This might seem to provide clear-cut rules, but it doesn’t. The standards are not clear and when one standard is to be applied over another is also not clear. The standards are akin to different shades of grey.

With that said, what is the standard that applies in a probate dispute–such as a will contest? The court answers this in the Estate of Glover, 744 S.W.2d 939 (Tex. 1988) case.

Facts & Procedural History

This case involved a will contest between a will beneficiary, Grace Glover, and several others who would inherit if the will was invalid.

The issue before the court of appeals was whether there was sufficient evidence to support the jury’s finding that the will was not revoked by the decedent.

Both sides agreed that where the will was last seen in the possession of a decedent and that the failure to produce such a will after the testator’s death raises a presumption that the decedent destroyed the will with the intention to revoke it. They also agreed that the proponent of the will has the burden of proof to overcome such presumption by competent evidence.

Both sides, however, differ as to the standard by which the sufficiency of the rebutting evidence should be measured. Appellee says that the correct standard is the usual preponderance of the evidence standard. Appellants, however, say that the presumption may be overcome only by clear and convincing evidence.

Sufficiency of the Evidence

In Texas probate law, the sufficiency of the evidence refers to the legal standard that determines whether the evidence presented in a probate case is enough to support a certain claim or proposition. The evidence must be sufficient to prove or disprove a particular fact or issue.

The “preponderance of the evidence” standard is the lowest standard of proof in probate cases. It requires that a fact be proven to be more likely true than not true. Conversely, the “clear and convincing evidence” standard is a higher standard of proof than the preponderance of the evidence. It requires evidence that is highly and substantially more probable to be true than not true.

The “clear and convincing evidence” is a higher standard of proof than the standard of “preponderance of the evidence” but lower than the standard of “beyond a reasonable doubt.” A higher standard of proof may require more convincing testimony or more concrete evidence.

Examples of Different Standards

Here are some examples of how the different standards of proof may apply in Texas probate cases:

  1. Clear and Convincing Evidence: For example, if someone claims that the testator (the person who made the will) lacked mental capacity or was unduly influenced when creating the last will and testament, they would need to present clear and convincing evidence to support their claim. This standard requires evidence that is highly probable and leaves no substantial doubt in the minds of the judge or jury.
  2. Preponderance of the Evidence: The preponderance of the evidence standard is commonly used in probate cases involving disputes over property distribution or inheritance rights. For instance, if there is a disagreement among beneficiaries regarding the distribution of assets, each party would need to present evidence that shows their entitlement to the disputed property. The judge or jury would then weigh the evidence and determine which side has presented the more convincing case. Whichever side’s evidence is more persuasive, even if only slightly, would prevail under this standard.
  3. Beyond a Reasonable Doubt: Beyond a reasonable doubt is the highest standard of proof and is generally not applicable in probate cases. This standard is typically reserved for criminal trials, where the defendant’s liberty is at stake. However, in rare instances where a probate case involves allegations of criminal conduct, such as fraud or forgery, this higher standard may be required to establish the guilt of the accused.

Here are some examples of evidence that might be considered clear and convincing in a will contest:

  • Medical records showing that the testator was suffering from dementia or another mental illness at the time the will was signed.
  • Witness testimony that the testator was acting strangely or erratically at the time the will was signed.
  • Evidence that the testator was coerced or pressured into signing the will.

The application of these standards can vary depending on the specific facts and circumstances of each probate case. The examples provided serve as general illustrations, but the ultimate determination of which standard of proof to apply lies with the judge or jury overseeing the case.

The Verdict: Preponderance of the Evidence

This brings us back to this case. The court in Glover concluded that, while some courts make a distinction between the standard of clear and convincing evidence and the preponderance of the evidence, Texas courts review evidence using factual sufficiency and legal sufficiency.

Factual sufficiency relates to the weight of the evidence. It involves a review of the evidence presented at trial to determine whether the judgment is supported by a preponderance of the evidence. Accordingly, the court of appeals held that the standard by which the sufficiency of the evidence should be reviewed is by a preponderance of the evidence.

The Takeaway

Absent other specific requirements, a proponent’s burden is to establish its cause by a preponderance of the evidence. This case serves as an important example of why one needs a properly executed will and an understanding of the legal standards involved in probate proceedings.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with disputes between heirs. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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