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 the testator’s testamentary capacity.

In this case, the party asserting lack of capacity and undue influence hired Don Lewittes, Ph.D., a psychologist, to evaluate the testamentary capacity of the testator.  The probate court judge held that Dr. Lewittes’ opinion on capacity was without a proper basis because he did not speak to the drafting attorney or the witnesses to the will to ascertain their observations on the day the will was executed.  Dr. Lewittes’ opinion was based “almost exclusively” on affidavits of the testator’s caregivers who started providing care for the testator long after the will was executed.

This hurdle imposed by the Massachusetts probate court raises some potential procedural obstacles.  Often these cases are litigated long after the drafting attorney and attesting witnesses have died or can no longer be found.  Let’s also not forget that the drafting attorney and witnesses may be less than enthusiastic to talk with an opposing party’s expert, though that issue may be fixed by having the expert review deposition transcripts.

The probate court here didn’t address witness unavailability because it didn’t have to.  The drafting attorney and witnesses provided clear and unequivocal testimony supporting the testator’s capacity and freedom from undue influence.

So what’s an expert to do if the drafting attorney and witnesses are unavailable?

That’s not clear.  If they are dead or cannot be located, a review of medical records from the time of the execution of the will or interviewing other people who saw the testator around the time of the execution of the will may be helpful.  If they are voluntarily ‘unavailable,’ then depose them with carefully crafted lines of questioning that go to their observations on the day the will was executed and have the expert review the deposition transcripts before offering his or her opinion on capacity.

What is clear, however, is that an expert who hopes to offer an opinion on testamentary capacity cannot merely rely on observations of people long after the relevant time period.