§ 5.03 RATIONALE FOR PRESUMPTIONS

• Jurisdiction: North Carolina

§ 5.03. RATIONALE FOR PRESUMPTIONS

Presumptions are created for a number of reasons: (1) policy, (2) fairness (possession of evidence), and (3) probability. These are often called the three "Ps." "Possession of the evidence" refers to one party's greater access to information. "Probabilities," as used here, means a rough estimate of how the world generally functions.

Different reasons underlie different presumptions, and in many instances several reasons may support a particular presumption.¹¹ The presumption of due delivery of properly posted mail (mailbox rule)¹² is based on probabilities (most letters are delivered) as well as the difficulty, on the part of the mailer, of proving receipt.¹³ In contrast, the presumption of undue influence when a lawyer is named a beneficiary under a will prepared by that lawyer is based on policy.¹⁴ Lawyers are fiduciaries; they are supposed to assist their clients, not take advantage of them.

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Notes:

^[11] See Morgan, Basic Problems of Evidence 32-34 (1963).

^[12] See supra note 7 (listing cases involving the mailbox rule).

^[13] The mailbox rule may also be tied to a substantive policy. See Schikore v. BankAmerica Supplemental, Retirement Plan, 269 F.3d 956, 963 (9th Cir. 2001) ("This case exemplifies the reason for the common law's application of the mailbox rule. The evidence is inconclusive: Schikore claims that she mailed the form, and the Plan claims that the form is not contained in its files. As the district court reasoned, the presumption of receipt established by the mailbox rule applied 'precisely to avoid the type of swearing contest in which the parties are presently involved.' In the absence of such a rule, plan participants could easily be disadvantaged and their rights made wholly dependent on the choice that plan administrators would be forced to make between unproved assertions by the participant and similarly unproved assertions by the plan they administer. Permitting such arbitrary decisionmaking would be directly contrary to the purpose of ERISA to 'protect the...