Forensic, General & Medical
Expert Witnesses

Expert Witness Challenges Testamentary Capacity of Will


When a person has created a will, there are often challenges to the document and terms and conditions held within by family or other dependents. However, an expert may be needed in the event that the plaintiff was left out of the will when the estate owner that has died was not of sound mind in finalizing the clauses and persons to inherit.

The capacity of will and the ability to keep a last testament are important for an estate owner. If he or she has no capacity of mind or is deficient in some manner such as a deteriorating health condition, he or she is not of sound mind. Then, updating or changing a will may successfully be challenged when this is proven in court. It is all too often that someone with a scheme or ulterior motives manipulates someone in an aging state with few mental defenses. Then, the will or testament is changed before the estate owner dies awarding this person the primary assets or money.

While many challenges are issued due to the family or other dependents wanting more than was given, they fail in numerous instances. With an expert witness to explain that the estate owner was not of sound mind or could not change the will in his or her mental state properly, it may be possible to explain to the judge or jury that the plaintiff should be awarded the rightful amount. When in the United States, these monies are usually restricted to the immediate family, but some dependents that receive income from the estate owner may have a claim.

The Challenge Explained

The testamentary capacity of will is the ability of an estate owner to change and alter a will when the individual is of his or her right mind. The challenge itself arises when the family or other beneficiaries do not receive what they thought or were told. The estate owner often will tell family what should be received and explain if any changes are made as he or she progresses through life. Estate planning, retirement and other events may diminish what is received, but with a company or other assets accruing funds, the overall principle of the estate rarely decreases in these circumstances.

When a challenge is issued, lawyers are hired to fight out the battle in court. The case itself usually occurs when there is enough evidence for the challenge to proceed. However, it is difficult to hire a lawyer when the case is weak and has little chance of success. The more evidence gathered, the stronger the plaintiff’s claim on the assets that have been distributed elsewhere. Sometimes, the challenge is issues against a person that received all or a larger portion of the assets than was explained by the estate owner. Then, the case may progress with multiple lawyers and more time before the matter is settled.

The Expert in Challenges

Through analyzing data, processing the documents and video and audio evidence of the estate owner, it is possible to discover the state of mind the deceased was in prior to his or her death. Compared to what has been created in documents and records years before, the expert may determine if he or she was of sound mind or was unduly influenced by someone or something.

When the challenge occurs, the expert must consider those challenging the will, what circumstances occurred just before the death and if any new persons or situations were involved with the estate owner. These aspects of the claim may provide the professional with a foundation to assess the psychological implications. Through all data and evidence collected, the expert witness may form an opinion on whether the estate owner changed his or her will of his or her own free will and with clarity of mind.

Testimony of the expert presented in the courtroom will either bolster the plaintiff’s claim or refute it based on what is found. The professional works with the truth and the evidence provided. If he or she discovers that the estate owner was of sound mind and changed the will based on certain actions of the plaintiff, he or she is honor bound to provide these details when asked. Additionally, any necessary examination may demonstrate how the deceased was influenced or forced to change the will based on a new person or circumstance. Then, the case of the plaintiff is frequently strong enough for success and awards to him or her.


Provided by HG.org


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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