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Dyer v. Souther

The phrase "definite tilt" should be removed from the suggested preliminary jury instructions on burden of proof since that phrase could be construed as requiring a party in a civil case to meet a greater evidentiary burden than the preponderance of the evidence.

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A jury found that the 1987 will of Laura Blanch Dyer was not the product of undue influence. In this appeal, the caveators challenge the trial court’s use of the phrase “definite tilt” in defining the preponderance of the evidence. Although we disapprove of the use of the phrase in instructing the jury, we conclude that the charge as a whole adequately expressed the burden of proof and affirm.

Laura Blanch Dyer died in 1994 leaving all of her property to her great nephew, Warren Christopher Souther, and then to his mother if he did not survive Ms. Dyer. Souther, the executor, filed a petition to probate her will, and Sonny Dyer and 16 other nephews and nieces filed a caveat. At the first jury trial, the trial court entered a directed verdict in favor of the propounder on the issue of undue influence and the jury returned a verdict in his favor on the issue of testamentary capacity. This Court concluded that the trial court erred in entering a directed verdict on undue influence and reversed.1 On retrial, the jury again found for the propounder. This appeal is from the second jury verdict in Souther’s favor.

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