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Tennessee Requires All Witnesses To A Will To Testify

February 13, 2014

Authors

Luke Lantta

Tennessee Requires All Witnesses To A Will To Testify

February 13, 2014

by: Luke Lantta

When it comes to will execution, sometimes the belt and suspenders approach may be well advised.  But, other times, less is more.  Like, perhaps, when it comes to the number of witnesses.  When state law requires that you only need a set number of witnesses to a will, the Court of Appeals of Tennessee’s opinion in the will contest case of Estate of Woolverton shows us the potential problems that may arise when you bring in extra, unnecessary witnesses.

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Georgia Self-Proving Affidavit Was Insufficient

September 17, 2013

Authors

Luke Lantta

Georgia Self-Proving Affidavit Was Insufficient

September 17, 2013

by: Luke Lantta

When a legislature goes through the trouble of giving you a statutory form, as the Georgia General Assembly has done with self-proving affidavits under O.C.G.A. § 53-4-24, why would you omit items from the statutory form?  In Martina v. Elrod, a will contest case, the caveators invalidated a self-proving affidavit because the self-proving affidavit was not in substantial compliance with the statutory requirements.  So, what was missing?

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Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

Authors

Luke Lantta

Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

by: Luke Lantta

Standing to caveat a will?  Check.  Undue influence?  Check.  Testamentary capacity?  Check.  Monomania?  Fraud?  Check and double check.  While the Georgia Supreme Court’s opinion in Odom v. Hughes didn’t break any new ground, it examined such a wide range of will contest topics that it’s definitely worth a read.  Without further ado . . .

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Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

Authors

Luke Lantta

Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

by: Luke Lantta

Whether a testator had the requisite capacity to execute a will is often the subject of lay testimony.  We’ve frequently talked here about how important the testimony of the drafting attorney, the attesting witnesses, and the notary are in undue influence or lack of testamentary capacity cases.  But, sometimes it may be worth getting an expert to testify in these cases especially when there may be some complex capacity issues.  If you get an expert, however, there’s still the issue of qualifying him or her.

And, even if you have an expert, here’s another reminder of how important the drafting attorney and witnesses to the will are.  In Fowler v. Kulhowvick (Rule 1:28 decision), a Massachusetts probate court actually rejected the expert testimony of a psychologist who failed to interview the drafting attorney and witnesses before offering an opinion on

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Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

Authors

Luke Lantta

Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

by: Luke Lantta

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses.

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Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

Authors

Luke Lantta

Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

by: Luke Lantta

Ohio‘s statute regarding the method of making a will is similar to statutes in other jurisdictions:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.*

So, how is this statute to be applied when the attesting witnesses ‘witness’ execution from another room through a one-way video monitor?

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Notary Did Not Count As A Second Attesting Witness

February 29, 2012

Authors

Luke Lantta

Notary Did Not Count As A Second Attesting Witness

February 29, 2012

by: Luke Lantta

Since our last review of subscribing witnesses to a will generated a lot of interest, here’s a recent case from Mississippi in which the Mississippi Court of Appeals had to consider whether the notary public who notarized the signature of an attesting witness was, herself, an attesting witness to the will.  Here’s the quick answer: she wasn’t.

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How To Prove A Will When Your Subscribing Witnesses Are All Dead Or Unavailable?

January 30, 2012

Authors

Luke Lantta

How To Prove A Will When Your Subscribing Witnesses Are All Dead Or Unavailable?

January 30, 2012

by: Luke Lantta

As ill luck or the passage of time would have it,  subscribing witnesses to a will may be dead or otherwise unavailable when it finally comes time to petition to probate the will.  How can you prove the will without subscribing witnesses?

In Mason v. Phillips, the Georgia Supreme Court walked through how you do it in Georgia, and found that the executor failed to prove the will.

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