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Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

Authors

Luke Lantta

Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

by: Luke Lantta

Expert witnesses can be expensive.  Yet, in estate disputes, they may be unavoidable.  When a will gets challenged based on an alleged lack of testamentary capacity or undue influence, you can all but guarantee that the decedent’s treating physician and medical records will make an appearance.  On the other side, the parties will line up the decedent’s friends, family, associates and the like who interacted with the decedent around the time the will was executed to claim the decedent either lacked capacity or was totally competent.  But, are these lay witnesses enough to overcome the doctor?  Perhaps not.

The Supreme Court of Appeals of West Virginia‘s opinion in Merritt v. Wolford provides a good example of what often happens when a party tries to combat

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Alcoholism And Incapacity

May 24, 2013

Authors

Luke Lantta

Alcoholism And Incapacity

May 24, 2013

by: Luke Lantta

A common theme of plaintiffs in lack of capacity cases is that some kind of cognitive impairment, such as dementia, chronic alcoholism, or major depression, by itself indicates that the grantor or testator lacked the requisite capacity to create a trust or will, respectively.  In Dorsey v. Ratz (link from Justia), a Maryland federal court recently looked at whether the diagnosis of major depressive disorder and alcohol dependence suggested incompetence when it came to executing a change of beneficiary form on a life insurance policy.

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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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