Expert Witnesses in Will Contests: A Vital Role

In a will contest, the outcome often depends upon evidence concerning events that occurred months or even years before the testator’s death. The testator—the person who made the will—is no longer available to explain what they intended, describe their mental condition, or answer allegations that they were manipulated or exploited. As a result, the parties must reconstruct the circumstances surrounding the execution of the disputed will using documents, witness testimony, medical records, financial information, and other available evidence.

In many cases, this evidence involves subjects outside the knowledge and experience of an ordinary judge or juror. Medical records may contain complicated diagnoses and descriptions of cognitive impairment. A disputed signature may require forensic examination. Financial records may involve hundreds of transactions across multiple accounts. A closely held business or piece of real estate may require specialized valuation. When issues such as these arise, an expert witness can provide the specialized knowledge necessary to understand and evaluate the evidence.

Expert witnesses can be retained by either the person contesting the will or the person defending it. The particular experts required will depend upon the grounds asserted in the will contest and the evidence available in the case. Some will contests require no expert testimony at all, while others may involve several experts addressing entirely different subjects.

What Is an Expert Witness?

An expert witness differs from an ordinary, or “fact,” witness.

A fact witness generally testifies about something they personally saw, heard, or experienced. For example, a neighbor might testify that the testator repeatedly became lost in their own neighborhood during the months before signing a new will. A bank employee might testify about a beneficiary accompanying the testator to the bank and directing a large financial transaction. A subscribing witness might describe the testator’s behavior during the execution of the disputed will.

An expert witness, by contrast, possesses specialized knowledge, training, education, skill, or experience that permits the expert to assist the judge or jury in understanding evidence or deciding an issue in dispute. Rather than simply recounting what happened, an expert may analyze the available evidence and offer an opinion based upon the expert’s specialized field.

For example, a neurologist reviewing medical records might explain how a particular neurological disease affected the testator’s cognitive functioning. A forensic document examiner might compare a disputed signature against known examples and provide an opinion concerning its authenticity. A forensic accountant might analyze years of financial records and identify transactions consistent with financial exploitation.

Expert Testimony Must Be Relevant and Reliable

Simply hiring someone with impressive credentials does not automatically mean that the person’s opinions will be admitted into evidence.

Texas Rule of Evidence 702 provides that a witness qualified as an expert by “knowledge, skill, experience, training, or education” may offer opinion testimony when the expert’s specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue.

Texas courts also serve a gatekeeping function concerning expert testimony. The expert must be qualified to address the particular subject at issue, and the opinions offered must be sufficiently relevant and reliable to be presented to the judge or jury. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998).

This makes the selection of an expert particularly important. An expert may be exceptionally accomplished in one field but lack the specialized expertise necessary to address the precise issue involved in the case.

Medical Experts in Testamentary Capacity Cases

Medical experts are among the most frequently used experts in will contests involving lack of testamentary capacity.

Testamentary capacity concerns whether the testator possessed the mental ability required to make a valid will at the time the will was executed. Consequently, evidence that the testator was elderly, physically ill, forgetful, or even diagnosed with dementia does not necessarily establish that the testator lacked testamentary capacity when the will was signed.

Depending upon the circumstances, psychiatrists, neurologists, psychologists, geriatricians, and other medical professionals may be retained to evaluate the testator’s condition.

Because the testator is ordinarily deceased by the time a will contest begins, the expert usually cannot personally examine the testator. Instead, the expert performs a retrospective evaluation based upon the evidence that remains.

That evidence may include medical records, hospitalization records, medication histories, neuropsychological testing, nursing records, assisted-living records, physician notes, testimony from caregivers and family members, and other information concerning the testator’s cognitive condition around the date of the will.

The expert can then explain the significance of medical terminology and diagnoses that might otherwise be difficult for a judge or jury to understand.

For example, medical records may repeatedly refer to confusion, impaired short-term memory, disorientation, executive dysfunction, or cognitive decline. An appropriately qualified medical expert can explain what those findings mean and whether they are consistent with an impairment that could have affected the testator’s ability to understand their property, family relationships, and estate plan.

A Dementia Diagnosis Does Not Automatically Invalidate a Will

Medical expert testimony can be particularly important because testamentary capacity is not synonymous with perfect mental health.

A person may suffer from dementia, Alzheimer’s disease, or another cognitive disorder and nevertheless possess sufficient testamentary capacity during a period of clarity. Texas courts sometimes refer to these periods as lucid intervals.

The critical issue is therefore not simply whether the testator had been diagnosed with a particular condition. The question is whether the condition affected the testator sufficiently to deprive them of testamentary capacity when the will was executed. An expert may therefore be asked to analyze not merely the diagnosis itself, but its severity, progression, symptoms, medications, and the testator’s functioning at or near the time the disputed will was signed.

The party defending the will may likewise retain a medical expert who reaches the opposite conclusion. It is not unusual in substantial will contests for each side to present competing experts who have reviewed substantially the same records but disagree about their significance.

Handwriting and Forensic Document Experts

When a party claims that a will or signature was forged, a forensic document examiner may become one of the most important witnesses in the case.

The expert typically compares the questioned handwriting or signature with known authentic examples of the testator’s writing. These comparison samples might include checks, letters, contracts, tax documents, prior wills, driver’s license records, or other documents known to have been signed by the testator.

The examiner may evaluate characteristics such as letter formation, stroke patterns, line quality, spacing, proportions, pen pressure, rhythm, and other individual writing characteristics.

Depending upon the issue and the condition of the document, a forensic examiner may also use magnification, specialized lighting, digital imaging, electrostatic detection equipment, or other techniques to identify alterations, erased material, indentations, differences in ink, or evidence that a signature was copied or traced.

Whenever possible, examination of the original document is preferable. A photocopy may eliminate or distort characteristics of the writing, ink, paper, and pen pressure that could otherwise assist the expert.

After completing the analysis, the expert may prepare a written report and ultimately testify about whether the questioned writing is consistent with known authentic samples.

Financial Experts and Forensic Accountants

Not every will contest is confined to what happened on the day the will was signed. In cases involving allegations of undue influence, fraud, or financial exploitation, the testator’s financial history may provide important evidence about the relationships and events leading up to the disputed will.

A forensic accountant can analyze bank statements, investment accounts, credit-card records, checks, wire transfers, business records, tax returns, and other financial documents to reconstruct what happened to the testator’s property.

For example, the evidence may show that shortly before execution of a new will, the eventual beneficiary began writing checks to themselves, transferring money from the testator’s accounts, changing account ownership, purchasing property using the testator’s funds, or otherwise assuming control over the testator’s finances.

No single transaction necessarily proves undue influence. A pattern of transactions, however, may help establish the nature of the relationship between the testator and the person accused of exercising influence.

Financial experts can be especially useful when the volume of records would otherwise overwhelm the judge or jury. Rather than presenting hundreds or thousands of individual transactions without context, an expert can organize the information, trace funds between accounts, identify unusual patterns, and explain the financial evidence in an understandable manner.

Estate Planning Attorneys as Expert Witnesses

In some cases, an experienced estate planning or probate attorney may be retained as an expert witness.

An attorney expert may explain customary estate-planning practices, the significance of particular provisions in a will, or circumstances surrounding the preparation and execution of estate-planning documents.

For example, an expert may be asked to evaluate whether particular conduct surrounding the preparation of a will departed substantially from customary practices intended to protect a testator’s independence. This might include circumstances in which the primary beneficiary selected the attorney, communicated all instructions to the attorney, remained present for confidential discussions, or participated extensively in arranging the execution.

Attorney experts may also be relevant when professional standards or the conduct of a lawyer involved in the estate planning process is itself at issue.

Care must be taken, however, to distinguish between proper expert testimony and testimony concerning matters of law that are for the court to decide. An expert witness does not replace the judge and ordinarily cannot simply tell the court what Texas law is or instruct the jury how the case should be decided.

The Drafting Attorney May Be More Important Than an Expert

The attorney who actually prepared the disputed will occupies a different position from an attorney retained later as an expert witness.

The drafting attorney is generally a fact witness because they personally participated in the events surrounding the creation of the will.

Their testimony can be extremely important.

The drafting attorney may be able to testify about who initially contacted the law office, who scheduled the appointment, who attended meetings with the testator, what instructions the testator provided, whether anyone else attempted to speak for the testator, whether the attorney met privately with the testator, whether the testator understood the proposed estate plan, and whether anything about the testator’s behavior raised concerns about capacity or undue influence.

The attorney’s file may be equally important. Notes, emails, drafts, questionnaires, correspondence, billing records, and other materials may provide contemporaneous evidence concerning the circumstances in which the challenged will was prepared.

Appraisers and Valuation Experts

Disputes concerning the value of estate property sometimes require specialized valuation experts.

Depending upon the property involved, the parties may retain real estate appraisers, business valuation experts, accountants, art appraisers, jewelry experts, antique specialists, or other professionals.

Valuation can become important when the parties disagree about the economic consequences of a will, settlement proposal, distribution, or transaction involving estate property.

For example, a will might leave a family business to one child and the remaining estate to another. Determining whether the distributions are approximately equal—or evaluating a proposed settlement of a dispute—may require an accurate valuation of the business.

Valuation experts may also become important when the litigation involves allegations that estate property was transferred or sold for substantially less than its fair market value.

Some will contests involve elderly testators who depended heavily upon caregivers, relatives, neighbors, or others for their daily needs.

In those cases, geriatric care managers, social workers, nurses, and other elder-care professionals may provide useful testimony concerning the testator’s living circumstances, functional limitations, dependence upon caregivers, and vulnerability to exploitation.

These issues can be particularly relevant to an undue-influence claim.

A testator who depended upon another person for transportation, food, medication, communication, access to finances, and contact with family may have been substantially more vulnerable to coercion than an independent person living without assistance.

An elder-care expert may help place those circumstances into context and explain the significance of dependency, isolation, caregiver control, and other factors relevant to the testator’s vulnerability.

Other Experts May Be Required

Will contests can involve unusual factual issues, and the categories of experts are not limited to those discussed above.

Depending upon the case, other experts might include digital-forensics specialists who recover deleted emails or text messages; computer experts who analyze electronic documents; toxicologists who evaluate the effects of medications or substances; linguists who evaluate unusual language in disputed writings; genealogists who identify heirs and family relationships; or vocational and business experts who analyze complicated ownership interests.

The appropriate expert is dictated by the evidence and disputed issues, not by a standard checklist.

Experts Are Subject to Discovery and Cross-Examination

Retaining an expert does not mean that the expert’s opinion will simply be accepted by the court.

The opposing party will ordinarily have an opportunity to investigate the expert’s qualifications, methodology, assumptions, opinions, and potential weaknesses.

Depending upon the circumstances and applicable discovery rules, the expert may be required to produce a report or disclose the opinions they intend to offer. The opposing attorney may take the expert’s deposition before trial and question the expert under oath.

At trial, the expert will be subject to cross-examination.

An opposing attorney may challenge the expert’s education and experience, point out inconsistencies in prior testimony, attack the information upon which the opinion is based, identify facts the expert failed to consider, challenge the expert’s methodology, or emphasize the amount the expert has been paid.

For that reason, selecting an expert involves considerably more than finding someone with the appropriate credentials. The expert must also be capable of explaining complicated subjects clearly and defending their conclusions under aggressive questioning.

Competing Experts in a Will Contest

Complex will contests frequently become a “battle of the experts.”

One medical expert may testify that the testator’s records demonstrate severe cognitive impairment inconsistent with testamentary capacity. Another may testify that the records demonstrate only mild impairment and do not establish incapacity at the moment the will was signed.

Similarly, one forensic document examiner may identify characteristics suggesting that a signature is forged, while another concludes that the variations are consistent with the testator’s age, illness, or natural variations in handwriting.

The existence of conflicting expert testimony does not necessarily mean that either expert is dishonest or incompetent. Experts may place different weight on particular evidence or reasonably disagree about the conclusions that can be drawn from incomplete historical information.

Ultimately, the judge or jury determines how much weight to give each expert’s testimony.

Expert Witnesses Can Be Expensive

Expert testimony can significantly increase the cost of probate litigation.

Experts generally charge for the time spent reviewing documents, meeting with attorneys, conducting examinations or analyses, preparing reports, giving depositions, preparing for trial, and testifying in court. Highly specialized experts may charge substantial hourly rates and require significant retainers before beginning work.

The cost must therefore be weighed against the importance of the expert’s testimony and the amount at stake in the dispute.

A good probate litigation attorney should not hire experts merely because experts are available. The attorney should determine whether the expert is actually necessary, what issue the expert will address, what evidence the expert needs, and whether the likely benefit of the testimony justifies the expense. In a relatively small estate, retaining several expensive experts may make little economic sense. In a multimillion-dollar will contest involving serious allegations of incapacity, forgery, or financial exploitation, the same expenditures may be entirely justified.

In certain instances, an attorney will agree to prosecute a will contest with no cost up front to the client. These contingency fee arrangements allow a client to pursue a will contest without paying attorney’s fees as the case progresses. Instead, the attorney agrees to accept a percentage of any money or property ultimately recovered for the client. Contingency fee arrangements can be particularly helpful when a person has been wrongfully disinherited but lacks the financial resources necessary to pay the substantial attorney’s fees associated with probate litigation.

Experts Can Affect Settlement Before Trial

The value of an expert witness is not limited to testimony in the courtroom.

A persuasive expert report can dramatically affect settlement negotiations. Once an opposing party learns that a qualified medical expert has concluded that the testator probably lacked testamentary capacity, or that a forensic document examiner has identified substantial evidence of forgery, the risks associated with proceeding to trial may change considerably.

Conversely, an unfavorable expert evaluation may cause an attorney and client to reconsider the strength of their own case before incurring additional litigation expenses.

For this reason, experts can serve an important role in evaluating a case as well as proving it.

Choosing the Right Expert Witness for a Will Contest

The most qualified expert on paper is not necessarily the best expert for a particular case.

An attorney should consider the expert’s education, professional licenses, specialized training, practical experience, prior testimony, publications, methodology, and experience with the particular issue in dispute. Equally important is the expert’s ability to communicate.

The best expert witnesses can take complicated technical information and explain it in language that a judge or juror can understand without oversimplifying it.

Credibility also matters. An expert who appears excessively partisan or unwilling to acknowledge limitations in the evidence can damage rather than strengthen a case. Strong experts understand the limits of their opinions and are prepared to acknowledge facts that do not necessarily favor the party who retained them.

Do I Need an Expert Witness for My Will Contest?

Not necessarily.

Many will contests can be proven primarily through fact witnesses and documentary evidence. In other cases, expert testimony may make the difference between suspicion and evidence capable of persuading a judge or jury.

The decision should be made after identifying the legal grounds for the will contest and evaluating the available evidence. A testamentary-capacity dispute involving extensive medical records may call for a medical expert. A suspected forgery may require a forensic document examiner. A case involving unexplained transfers may benefit from a forensic accountant. An undue-influence case involving an isolated and dependent elderly testator may justify testimony from an elder-care professional.

Just as importantly, an attorney should determine when to retain the expert. Waiting until shortly before trial can create unnecessary problems if the expert needs substantial time to review records, conduct an analysis, or perform additional investigation.

An experienced probate litigation attorney can evaluate the issues in a will contest, determine whether expert testimony is necessary, select an expert whose particular expertise matches the disputed issue, and work with that expert throughout discovery, depositions, settlement negotiations, and trial.

In a complicated will contest, the right expert does more than offer an opinion. The expert can help transform complicated medical, financial, forensic, or technical evidence into information that a judge or jury can understand—and that can make a significant difference in the ultimate outcome of the case.

Attorney-Expert Collaboration is Key

If you are involved in a will contest in which expert testimony may be necessary, the Aldrich Law Firm can help. Our firm has experience working with medical professionals, forensic document examiners, financial experts, appraisers, and other expert witnesses in contested probate proceedings. We can evaluate the evidence in your case, determine whether an expert witness is needed, identify the type of expert best suited to address the disputed issues, and work with that expert throughout discovery, depositions, settlement negotiations, and trial. If you are considering contesting a will – or defending a will against a challenge – please contact us to schedule a consultation and discuss how expert testimony may affect your case.