Also known as:presumption · presumptions · burden of proof · onus · evidentiary burden
Written by attorneys · grounded in primary & secondary sources — see below
A doctrinal framework that allocates the initial production of evidence and the ultimate persuasion on disputed facts through rebuttable inferences drawn from established predicates. The framework places the burden of producing contrary evidence on the party opposing the presumed fact while leaving the burden of persuasion on the party who would bear it absent the presumption.
Sources & Authorities
How it applies
Common Examples
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Will Revocation Presumption Rebutted
Perry Pratt executed a will leaving his estate to his niece. After a later marriage he tore up the document believing the new spouse would inherit by law. When the niece offered the torn will for probate the court applied the presumption that the revocation was ineffective because it rested on a false assumption of law. The surviving spouse produced no evidence that Pratt would have preferred intestacy over the original disposition, so the presumption stood and the will was probated.
Spousal Communication Privilege Presumed
Preston Pratt wrote a letter to his wife describing a business transaction. Federal prosecutors subpoenaed the letter in a tax investigation. The court held that the letter was presumptively confidential. The government offered no evidence that the communication was intended for third-party disclosure, so the presumption of confidentiality prevailed and the letter remained protected.
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Cases
Statutes
Federal Rules
Uniform Acts
Model Codes
Common Law
Restatements
Casebooks
Will Contestant Bears Persuasion Burden
Pavel Petrov offered a 2018 will for probate. A later will surfaced and the contestant alleged undue influence. The proponent first established due execution. The contestant then had to produce evidence of undue influence and ultimately persuade the factfinder that the later will was invalid. Because the contestant failed to carry the burden of persuasion the 2018 will was admitted.
Apportionment Burden on Joint Tortfeasors
Parker Phillips and Pierce Patterson both discharged pollutants that combined to damage a neighboring farm. Phillips sought to limit his liability by showing that only a portion of the harm was attributable to his conduct. Because the harm was theoretically apportionable the court placed the burden of proving the proper division on each defendant. Phillips failed to meet that burden and remained jointly and severally liable for the full amount.
Presumption Shifts Only Production Burden
Paul Peterson sued his former employer for age discrimination. The court instructed the jury that once Peterson showed he was over forty and qualified for the position the burden of producing evidence of a legitimate nondiscriminatory reason shifted to the employer. The ultimate burden of persuading the jury that age was the reason for termination remained with Peterson throughout.
Parentage Presumption Overcome by Adjudication
Peak Performance hired Preston Pratt as a surrogate. After the child was born Pratt sought to establish parentage under the statutory presumption arising from the gestational agreement. The court required Pratt to overcome the presumption through a judicial proceeding under the governing article. Because Pratt produced no evidence rebutting the presumption the intended parents were adjudicated the legal parents.
Common questions
Frequently Asked
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Does a presumption ever shift the burden of persuasion?+
No. Under the governing rule a presumption shifts only the burden of producing evidence to rebut the presumed fact. The burden of persuasion remains on the party who originally bore it.
Supporting sources
Who bears the burden of proving due execution of a will?+
The proponent of the will must establish prima facie proof of due execution in all cases. Contestants then bear the burden of establishing lack of capacity, undue influence, or revocation.
Supporting sources
When is the presumption of spousal communication confidentiality overcome?+
The government must produce evidence that the communication was not intended to be confidential. The spouse asserting the privilege need not affirmatively prove confidentiality.
Supporting sources
What must a defendant show to limit liability for indivisible harm caused by multiple tortfeasors?+
Each defendant seeking apportionment must prove the proper division of harm among the actors. Failure to meet that burden leaves the defendant jointly and severally liable for the entire loss.
Supporting sources
How is a statutory presumption of parentage rebutted?+
The presumption may be overcome only by an adjudication under the governing article or by a valid denial of parentage. Mere production of contrary evidence is insufficient without a judicial determination.
Supporting sources
433 U.S. 186 (1977)Conflict of Laws
…routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion." This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements…