In commercial litigation, the legal battle is often fought with paper. That is because many business disputes have contracts and other documents at their heart. A will contest is often quite different. To be sure, the will itself is central to the dispute between the parties. But in a will contest, the court’s decision often swings one way or the other based upon the evidence that is presented by witnesses themselves. This begs the question, of course, as to what types of witnesses are generally called to testify in a contest over the validity of a will.
Where the Decedent’s (“the Testator’s”) mental status at the time the will was executed is at issue – and it almost always is in any will contest – both sides ordinarily will put forward testimony by friends and family members concerning the contemporaneous health, appearance, and cogency of the Testator at the time the contested will was signed. Depending upon the circumstances, nurses and non-physician caregivers may also be called to answer factual questions about the Testator. While these witnesses are not allowed to give their opinions regarding the mental health of the Testator, they can provide an important picture for the court to see.
If a party claims there was undue influence exerted upon the Testator, lay witnesses can also provide examples of dependency, lack of clarity in thought, or other signs that the person signing the will did not do so voluntarily. Again, they may not offer opinions.
An important witness not to be overlooked is the attorney who prepared the will and who likely supervised the signing. The attorney can provide an important perspective as to the general attentiveness and apparent clarity of mind that the Testator had at the moment of signing. In most instances, however, the attorney doesn’t testify as an expert. The court itself determines the legal issues at stake and an attorney isn’t, of course, qualified to give an opinion as to the Testator’s actual medical condition at the time of signing. Along with the drafting attorney, key witnesses to the events occurring at the time of execution of the will normally include the two attesting witnesses to the document as well as the notary public.
In addition to the witnesses who testify as to facts, both sides to a will contest typically call upon physicians to provide expert testimony as to the mental and physical capacity of the Testator at the time when the will was executed. If properly qualified, these experts can even offer expert testimony as to whether the Testator was susceptible to undue influence. The role of the expert is to provide an important perspective to the court (and/or jury, if there is one), since the medical issues themselves are deemed to be beyond the capacity of a layperson.
When contesting or defending a will, the decision to call witnesses and present testimony and other evidence is a critical one that must be placed in the hands of an experienced attorney. Experience in the drafting of wills, trusts, and other estate planning documents is important, but in a will contest, it generally isn’t enough. Both sides to a will contest need a litigator, an attorney who is skilled in managing a trial before an appropriate judicial body. While every will contest doesn’t go all the way to trial, a party needs experienced legal counsel who can take the case as far as necessary to get a successful resolution.
The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients. We represent clients in all types of transactions, including estate planning, will preparation, and the creation of appropriate trust documents. We also have extensive litigation experience. At Romano & Sumner, we pride ourselves not only upon our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.
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