Person Who May Have Exerted Undue Influence Always Has The Burden Of Proof

The burden of proof matters, and cases can hinge on which party bears the burden of proof. It was not clear who bore that burden when someone on his deathbed transfers his property under circumstances where competence may be in question. Garrison v. Garrison answered that question, at least if the transferee was a family member.

On his deathbed, Thomas Garrison transferred title on two cars to one of his sons, Jay Garrison. After Thomas’ death, his widow Pamela Garrison filed a petition to recover these assets. She argued that they were inter vivos gifts, and that Thomas was not competent to give them. After a hearing, trial court found that the evidence of Thomas’ competency to make a gift causa mortis was evenly split and that the vehicles must therefore be returned to the estate.

On appeal, the Court distinguished between an inter vivos gift and a gift causa mortis.

An inter vivos gift is one where the donee becomes the absolute owner of a thing given in the lifetime of the donor. An inter vivos gift is made when: (1) the donor is competent to contract; (2) the donor has freedom of will; (3) the donor intends to make a gift; (4) the gift is completed with nothing left undone; (5) the property is delivered by the donor and accepted by the donee; and (6) the gift is immediate and absolute.

A gift causa mortis, on the other hand, is accomplished when: (1) the gift was the donor’s property; (2) the gift was given when the donor was in peril of death or while under the apprehension of impending death from an existing malady; (3) the donor dies as a result of the disorder without intervening recovery; and, (4) there was actual or constructive delivery of the thing given to the donee with the intention that the title vest conditionally upon the death of the donor.

And the Court noted a 1904 Indiana Supreme Court decision, Branstrator v. Crow, which found that when the evidence of competency was in equipoise, then the plaintiffs’ claim would be defeated.

But the Court nevertheless affirmed the trial court’s decision because of the familial relationship between Thomas and Jay.

We acknowledged that establishment of the existence of certain relationships, such as parent and child, lead to a presumption that the questioned transaction was the result of undue influence exerted by the dominant party, constructively fraudulent, and, therefore, void.

In this situation, the fact that the evidence of Thomas’s competence was evenly split led to the opposite result—Jay did not rebut the presumption and the vehicles went back to the estate.


  1. If there is equal evidence regarding a person’s competence, the person challenging the competence generally loses.
  2. If a relationship exists which could give rise to a presumption of undue influence, then equal evidence regarding a person’s competence means that the gift is revoked.

Read the full March 2017 Law Club Handout or listen to the recording here.

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