§ 27-301 — Rule 301. Presumptions in general

Nebraska § 27-301

• Jurisdiction: Nebraska
• Ch. 27: Courts; Rules of Evidence

Text

In all cases not otherwise provided for by statute or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

Legislative History

Source: Laws 1975, LB 279, § 8. Annotations: The concept referred to as a "presumption of undue influence" in will contests is not a true presumption. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). The trial court did not err in refusing a proposed instruction on a presumption of undue influence where both the contestant and the proponent had met their respective burdens of production of evidence. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). In all cases not otherwise provided for by statute or by such rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to section 48-162.01(3) is correct. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999). The regulatory presumption contained in Neb. Admin. Code tit. 469, ch. 2, section 2-009.07B4 (1985), that the gratuitous transfer of an applicant's home within two years before moving into a different facility is presumed to be the transfer of a resource to qualify for public assistance, does not come within the ambit of this section of the Nebraska Evidence Rules. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988). The "presumption of undue influence" is not a presumption within the ambit and meaning of section 27-301. Anderson v. Claussen, 200 Neb. 74, 262 N.W.2d 438 (1978). A presumption of undue influence in executing deeds is not a presumption contemplated by this section and the burden of proof on the issue of undue influence remains on the contestant. Golgert v. Smidt, 197 Neb. 667, 250 N.W.2d 628 (1977). In contested will case, the "presumption of undue influence" is not a presumption within the ambit and meaning of this section. McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977).