A Key Evidence in Texas Will Contests: The Estate Planner

EDITOR’S NOTE:

In any potential dispute or estate litigation, it is imperative to establish the facts at hand. In this blog post, we go over the key role of the estate planning attorney. He or she can be a key source of evidence during any estate dispute to be played out in a Dallas courtroom.

 

Key Evidence in Every Will Contest: The Estate Planner

Every will contest that our firm is involved in invites our probate litigators to dig deep into unique and individual facts surrounding some core estate dispute. No case is ever exactly like another. But there are some elements of discovery in these cases that never change, and they play out like a familiar tune – time and again. One of the most vital, useful and common discovery tools in every will contest is obtaining information from the estate planning attorney that helped craft the will that is being challenged.

Of the available witnesses, the estate planner often provides the most fertile ground upon which the contesting party can begin to identify, develop and present viable theories aimed at supporting or invalidating a will. They are a key witness for several reasons. They are, of course, a fact witness. Often, the estate planner is the last legal professional that the testator (the person signing the will) consulted with prior to signing the will, or prior to their death. When a will is contested based on a lack of mental capacity or undue influence, the estate planner’s testimony provides key facts about the actual event of execution.

But the estate planner is much more than just a sterile fact witness. Certain common themes in a will contest can be amplified or minimized by the estate planner’s testimony. In virtually every challenge brought forth in a will contest, the estate planner’s competence, ethics, professionalism and work product are all under intense scrutiny, and any attorney would staunchly defend the integrity of their work.

In a will contest, our probate litigators obtain information from estate planners through two primary methods. We compel the production of the decedent’s estate planning file from the estate planning attorney, and we take the oral deposition of the estate planner to obtain their sworn testimony. Both are tremendous sources of information in every probate dispute, and the goals of our efforts are simple.

We want to:

· Learn the facts (the who, what, when and where concerning the estate planner’s work for the client);

· Test the estate planner’s credibility and confidence; and

· Test our theories of the case (e.g. learn more about the testator’s mental state, or the alleged undue influencer’s role in the process to create the will).

EDITOR’S SUMMARY

We have learned that the estate planning attorney can be a key source of information in any estate dispute under Texas law. Should a case go to trial here in Dallas, or anywhere in Texas, the first order of business is to establish the facts. If you or a loved one is facing a possible estate dispute, contact one of our Dallas-based attorneys for a consultation. With a new office in Plano / Frisco, our probate dispute law firm makes it easy to get this first, initial analysis of any potential litigation here in Texas.