Ziy's Estate, In re, 37895

• Decision Date: 14 May 1969
• Docket Number: No. 37895,37895
• Citation: 223 So.2d 42
• Parties: In re ESTATE of Nellie E. ZIY, Deceased. Sarah BLUMENTHAL, Petitioner, v. Annie S. BOWEN, Clemmie Lee Hunter, Leona Lucille Kaneaster and Birdie M. Gober, Respondents.
• Court: Florida Supreme Court

Page 42

223 So.2d 42

In re ESTATE of Nellie E. ZIY, Deceased.

Sarah BLUMENTHAL, Petitioner, v. Annie S. BOWEN, Clemmie Lee Hunter, Leona Lucille Kaneaster and Birdie M. Gober, Respondents.

No. 37895.

Supreme Court of Florida.

May 14, 1969.

Rehearing Denied June 17, 1969.

J. T. Blackard and Knight, Underwood, Peters, Hoeveler & Pickle, Miami, for petitioner.

Robert C. Lane, Miami, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 213 So.2d 503, 504, wherein it was held:

'An adjudication of incompetency merely shifts the burden of going forward with the evidence after the prima facie case is made as to the formalities of execution. The fact of an adjudication of incompetency shifts the burden of going forward with the evidence from the contestant of the will to the proponent of the will.'

The above quoted statement apparently conflicts with the following statement of the District Court of Appeal, Second District, in Chapman v. Campbell: ¹

'The general rule, in the absence of any evidence to the contrary, is that a testator is presumed to be sane and to have sufficient mental capacity to make a will * * * An adjudication of insanity or incompetency, however, raises a question of testamentary incapacity and the burden of proof then shifts to the proponent of the will. * * *' (Emphasis supplied.)

The burden of proof, in its strict sense, is the duty of establishing the truth of a given proposition. In civil litigation, this burden is discharged by the production of a preponderance of the evidence and does not shift during the course of a trial.

Another usage of the term 'burden of proof' exists, however, a usage synonymous with 'burden of going forward with the evidence.' Used in this secondary sense, the burden can shift from party to party during the course of a trial. ²

Although the dual usage of the term burden of proof is generally recognized, we have discovered no Florida cases discussing the problem. The following explanation appears in an Alabama case: ³

'The term 'burden of proof' has two distinct meanings. By the one is meant the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises; by the other is meant the duty of producing evidence at the beginning or at any subsequent stage of the trial, in order to make or meet a prima facie case. Generally speaking, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as the case progresses, while the burden of proof, meaning the obligation to establish the truth of the claim by a preponderance of evidence, rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails.'

In the instant case the District Court correctly held that an adjudication of incompetency shifts the burden of going forward with the evidence on testamentary capacity to the proponent of the will. The burden of proof, in its strict sense, still rests, as it always does, on the proponent.

The Chapman case uses 'burden of proof' in its secondary...