February 27th, 2013
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…)