14-2712. Burdens relating to validity of governing instruments

A. A proponent of a governing instrument has the burden of establishing prima facie proof of due execution in all cases.

B. It is a rebuttable presumption that a person who executes a governing instrument is presumed to have capacity to execute the governing instrument and to have done so free from undue influence and duress.

C. If the validity of a governing instrument is challenged on the grounds of revocation by a later governing instrument, the validity of the later governing instrument must be determined first.

D. Except as prescribed pursuant to subsections E and F of this section, a party that challenges the validity of a governing instrument has the burden of establishing the invalidity of that governing instrument by a preponderance of the evidence.

E. A governing instrument is presumed to be the product of undue influence if either:

1. A person who had a confidential relationship to the creator of the governing instrument was active in procuring its creation and execution and is a principal beneficiary of the governing instrument.

2. The preparer of the governing instrument or the preparer's spouse or parents or the issue of the preparer's spouse or parents is a principal beneficiary of the governing instrument.  This paragraph does not apply if the governing instrument was prepared for a person who is a grandparent of the preparer, the issue of a grandparent of the preparer or the respective spouses or former spouses of persons related to the preparer.

F. The beneficiary of the governing instrument may overcome a presumption of undue influence by a preponderance of the evidence.

G. For the purposes of this section, determining if a person is a principal beneficiary of a governing instrument or the preparer of a governing instrument is a question of fact to be determined by the totality of the circumstances.

H. This section does not apply to the following:

1. Proceedings to determine the validity of a durable power of attorney pursuant to section 14-5506, subsection B.

2. Proceedings to determine ownership of multiple party accounts pursuant to section 14-6211.