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. (more…)
by
Luke Lantta
| Posted in
Estates, Executors, Probate Court
| Tagged with: attesting witnesses, estate litigation, expert testimony on testamentary capacity, expert witnesses in lack of capacity cases, expert witnesses in undue influence cases, fiduciary litigation, fowler v. kulhowvick, lack of capacity, lack of testamentary capacity, massachusetts, massachusetts estate litigation, massachusetts fiduciary litigation, massachusetts probate court litigation, massachusetts testamentary capacity, massachusetts trusts and estates litigation, massachusetts undue influence, notary for will, probate court litigation, probate litigation, subscribing witnesses, testamentary capacity litigation, trust litigation, trusts and estates litigation, undue influence litigation, witnesses to will
|
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. (more…)
by
Luke Lantta
| Posted in
Estates, Executors, Probate Court
| Tagged with: amerson v. pahl, attesting witnesses, caveat will, confidential relationship, estate litigation, fiduciary litigation, georgia, georgia confidential relationship, georgia estate litigation, georgia estate litigation lawyers, georgia fiduciary litigation, georgia fiduciary litigation lawyers, georgia lack of capacity, georgia lack of testamentary capacity, georgia probate court litigation, georgia probate court litigation lawyers, georgia undue influence, lack of capacity, lack of testamentary capacity, notary for will, probate court litigation, subscribing witnesses, undue influence, witnesses to will
|
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? (more…)
by
Luke Lantta
| Posted in
Estates, Probate Court
| Tagged with: attesting witnesses, conscious presence, estate litigation, execution of will, fiduciary litigation, ohio, ohio estate litigation, ohio fiduciary litigation, ohio probate court litigation, ohio trusts and estates litigation, ohio will contest, subscribing witnesses, trusts and estates litigation, whitacre v. crowe
|
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. (more…)
by
Luke Lantta
| Posted in
Estates, Executors, Probate Court
| Tagged with: attesting witnesses, determination of heirs, estate of farr, farr v. wirick, mississippi chancery court litigation, mississippi estate litigation, mississippi fiduciary litigation, mississippi trust litigation, mississippi will contest, nonholographic will, subscribing witnesses
|
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. (more…)
by
Luke Lantta
| Posted in
Estates, Probate Court
| Tagged with: attesting witnesses, authenticity of will, caveat will, death of subscribing witness, georgia estate litigation, georgia estate litigation lawyers, georgia fiduciary litigation, georgia fiduciary litigation lawyers, georgia probate court lawyers, georgia probate court litigation, georgia will contest, handwriting analysis, mason v. phillips, subscribing witnesses, unavailability of subscribing witness
|
