Section 13.12 Burden of Proof

• Library: Estate Administration 2014 Supp

6. (§13.12) Burden of Proof

“The petitioner has the burden of proving incapacity, partial incapacity, disability, or partial disability by clear and convincing evidence.” Section 475.075.7, RSMo 2000. Clear and convincing evidence has been defined as evidence that “instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re O’Brien, 600 S.W.2d 695, 697 (Mo. App. W.D. 1980); § 475.075.7; In re Hancock, 828 S.W.2d 707, 708 (Mo. App. S.D. 1992); In re Mitchell, 914 S.W.2d 844 (Mo. App. S.D. 1996).

In Keyser v. Keyser, 81 S.W.3d 164 (Mo. App. W.D. 2002), the alleged incompetent in 1997 executed a durable power of attorney to her daughter. Three years later, her two sons petitioned the court for a guardianship and conservatorship over their mother. After trial, the court found that the original power of attorney was a nullity, and the court appointed the public administrator as the guardian and conservator of Mrs. Keyser.

The court held that, based on the evidence...