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Expert Witness on Testamentary Capacity

Experts are often needed when a will must be analyzed either before or after the person has died. Testamentary capacity is regarded as the legal and mental ability of a person to create or change a valid will.

If the person making the will is not of sound mind or does not have the legal requirements to do so, he or she may have made these changes or created the document at the behest of another party. This often requires a forensic evaluator to evaluate the document when the person has passed and there may be a challenge by one or more parties at the issuance of the will. Some persons may contact a lawyer before the person dies to ensure a valid will has been created without duress and with the person being of sound mind and memory.

Testamentary capacity usually poses various uncommon issues due to other requirements imposed by this process. The capacity for someone to attend and take part in a case in court is not the same as having enough reason and memory to create or change a will. While someone that helped the individual draft or alter the document could
stand in court for criminal acts, the person that has passed on cannot. This also means that the deceased cannot be medically or psychologically evaluated for competence once he or she is no longer living. One stipulation does provide for the act of a checking the body for any foreign substances or an examination of the brain to determine if he or she was capable of altering the will legally. One of the affected parties may also make a premortem evaluation before any changes alter the legal paper so that he or she may be deemed mentally competent to do so in the situation.

Challenges to a Will

Contesting a will usually occurs due to emotional conflicts, heated debates over what may be left and various parties feeling wronged. Family dynamics of these situations is often lost when applied to the court. It is usually close family that knows if a will may have been tampered due to alterations at the last minute when the deceased was incapable of making changes with full mental capacity. While testamentary capacity is not even remotely high in the court’s eyes as important, those that are left parts of the estate feel it should be within the family and not bartered or traded to someone that may have tampered with the legal document in a criminal manner. It is usually necessary to hire an expert witness to explain to the court how the individual that passed may not have been of sound mind, and how this affects those surviving him or her. Otherwise, the judge or jury may find that the person that died did have testamentary capacity when there may be certain indications that describe differently.

Criteria for Testamentary Capacity

Jurisdiction may have variations to the rules for criteria to determine if someone is of testamentary capacity, but there is a general outline that may be followed for determination. When the execution of the will is going on, the person creating or altering it must know the extent of the assets and property included in the estate that is being affected, the natural born and other heirs that may be left something or nothing, the use of the will to leave assets, knowledge of what is occurring and have a rational plan in distributing the assets involved.

Some determinations require the testator be competent unless proven otherwise through some means. Expert witnesses are paramount in determining if there are any external factors that may have caused the alteration or creation of a will in opposition to what would have been if the individual had been of sound mind. Some problems that experts face are proving competence, a failure in determining unexpected bequests that the person may have completed, an accurate list of assets in the estate, brain changes the individual may have experienced, impairments versus standard tests that cannot measure them and delusions. There are many medical and psychological issues someone may go through before dying, and without a proper assessment of the deceased before he or she dies, determining these factors becomes difficult.

The Expert Witness for Testamentary Capacity

An expert in the field of wills and those that create or alter them usually has various tested and well-used methods for determining if someone was of sound mind or competent when he or she initiated or made changes to his or her will. While challenges to the document are what usually start the process, the testimony of these professionals usually assists in resolve the matter.

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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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