A Will contest is one of the more traumatic areas of litigation. In addition to dealing with the loss of a loved one, clients find themselves absorbed in what can often be contentious litigation regarding the assets of an estate. This difficult situation is only exacerbated by the fact that the litigation is often against loved ones, including family members. Accordingly, before commencing a Will contest, it is imperative for clients to understand the kind of evidence the Court will actually look at in adjudicating a Will dispute.
No different than any other litigation, the Court is bound by the Rules of Evidence. The Rules of Evidence have often been described as the building blocks of litigation. In Will contests there is certain evidence that is admissible, and a significant amount of evidence that is not admissible. It’s imperative to know the difference.
What is a Decedent’s Testamentary Capacity?
First, let’s look at what is at issue. A Decedent possesses testamentary capacity if she has an intelligent knowledge regarding the natural objects of her bounty, the general composition of her estate and what she desires done with it. Stated plainly, the Decedent has to know what she is doing when she signs the Will. One can have capacity to execute a Will even though memory may have been impaired by age or disease.[1] Capacity is presumed because the Court recognizes that a sound mind is the normal condition. After proof of execution by two witnesses, the burden of proof is generally on the contestant, which can only be sustained by clear, strong, and compelling evidence.[2]
A contestant challenging a Will as invalid due to undue influence must establish by clear and convincing evidence that (i) a person was in a confidential relationship with the Decedent; (ii) the person received a substantial benefit under the Will, and (iii) the Decedent was of weakened intellect.[3]
What type of evidence can be admitted?
Courts here will consider both expert witness testimony and lay witness testimony. Both are often difficult to present. As for expert witness testimony, it can be difficult to obtain expert witnesses who have enough first-hand knowledge of the Decedent’s mental capacity during the Decedent’s lifetime. Lay witnesses pose an equal, but slightly different challenge. Lay witnesses have credibility issues. Mainly, it is common for the lay witnesses to be the parties that are subject to Will contests. Lay witnesses’ testimony can be challenged because these witnesses have an interest in the outcome of the Will dispute litigation.
Witnesses will testify about the Decedent’s capacity at the time the Will was signed. “Testamentary capacity exists when the testator has intelligent knowledge of the natural objects of his bounty, the general composition of his estate, and what he or she wants done with it, even if his memory is impaired by age or disease.”[4] “Neither old age, nor its infirmities, including untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech, will deprive a person of the right to dispose of his own property.”[5] “In a Will contest, the court is concerned with the testator’s mental capabilities at the time he executed the Will and testimony of this condition close to that time must be considered more significant.”[6]
Parties will often attempt to submit medical records and the postmortem reports of the medical examiner to prove their case.
Generally, medical records are admissible under the business record exception to the hearsay rule (Pa.R.E. 803(6)). However, their admissibility under this rule is limited. “Medical records are admissible under the hearsay rules as evidence of facts contained therein but not as evidence of medical opinion or diagnosis.”[7] It is in the Comment to Evidence Rule 803(6) where it is made clear that the rule is not intended to admit opinions and diagnosis contained in business records, and thus, the Pennsylvania rule is narrower than the federal counterpart. The rule was narrowed so that opinions and diagnosis were excluded so that the Pennsylvania rule would be consistent with prior Pennsylvania law, which consistently held opinions in hospital records not admissible because there was not an adequate opportunity for the opposing party to test the qualifications of the person rendering the opinion, or to test the correctness of the diagnosis by cross-examination.[8]
This gets a bit technical, but the idea here is that, in general, when the record reveals what is or is not present in the patient or that a test occurred, the record reflects facts. On the other hand, when the record reflects what the presence or absence of something means, the record more likely reflects a medical diagnosis or opinion.”[9]
The medical or hospital records are admissible to show the fact of hospitalization, treatment prescribed, and the symptoms given. Medical opinion contained in the record is not admissible where the doctor is not available for cross-examination.
A party’s efforts to admit the medical records to establish the diagnosis of dementia to establish lack of capacity in support of a Will contest is, therefore, limited. The Decedent’s medical records could be admitted at trial to establish facts contained therein. For example, the observations, examination, or test results of the decedent would be admissible. But the diagnosis of dementia would not be.
Can you use a Medical Examiner’s Report?
A medical examiner’s report, as a medical record, is admissible under the business records exceptions to the hearsay rule to establish the facts contained therein. The medical examiner’s opinion therein, particularly the medical examiner’s opinion as to the cause of death, is not admissible.
The Supreme Court of Pennsylvania provides guidance on this. In Commonwealth v. McCloud,[10] the Supreme Court of Pennsylvania held: “an autopsy report in proving legal causation is impermissible unless the accused is afforded the opportunity to confront and cross-examine the medical examiner who performed the autopsy, absent a compelling necessity.” The Court stated that “it may have been proper . . . to use the autopsy report to establish the fact of decedent’s death, to show that an autopsy had been performed or to verify the identity of the examiner who performed the autopsy. . . . However, its use as direct evidence in establishing the cause of death (an element of the crime) denied appellant the fundamental right of confrontation and was error.”
Although McCloud is a criminal prosecution case, civil courts follow the rule that the cause of death is a medical opinion and as such, a medical examiner’s report is often inadmissible to establish the cause of death without the testimony of the medical examiner.
Another problem is that the medical examiner’s report contains hearsay statements made to the examiner by the contestant of the Will. Although the medical examiner’s report is a business record and would fall within that exception to the hearsay rule, the hearsay statements contained therein are not admissible unless they fall within an exception to the hearsay rule. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
Case law supports the notion that where there is hearsay within a business record, the hearsay statement, or even the entire record becomes inadmissible, because the reliability of the contents of the document is placed into question. In situations where the report is based on the personal knowledge of persons who were not part of the reporting organization, the reliability of the information may be more questionable and the business records exception operates differently.
Each case is different. Each matter presents unique evidentiary issues that need to be addressed by seasoned trial attorneys. Before considering a challenge to a Will (or if you are defending a Will contest) be sure to consult with professionals who understand the Rules of Evidence and the manner in which your case can be presented to the Court.
- [1] Protyniak Will, 427 Pa. 524 (1967).
- [2] Franz Will, 268 Pa. 618, 622 (1951).
- [3] Estate of Reichel, 400 A.2d 1268, 1270 (Pa. 1979).
- [4] Brantinger Will, 210 A.2d 246 (Pa. 1965).
- [5] Estate of Hastings, 387 A.2d 865, 868 (Pa. 1978), citing Aggas v. Munnell, 152 A. 840, 843 (Pa. 1930).
- [6] Burns v. Kabboul, 595 A.2d 1153 (Pa. 1991) (citing In re Estate of Brantlinger, 210 A.2d 246, 253 (Pa. 1965), In re Estate of Agostini, 457 A.2d 861, 867 (Pa. Super. 1983)).
- [7] Folger ex. Rel. Folger v. Dugan, 876 A.2d 1049 (Pa. 2005) (citing Commonwealth v. Green, 380 A.2d 798 799-801 (Pa. Super. 1977)).
- [8] See Paxos v. Jarka Corp., 171 A. 468 (Pa. 1934).
- [9] Folger, 876 A.2d at 1056 (citing Commonwealth v. Xiong, 630 A.2d 446, 452 (Pa. Super. 1993)).
- [10] 322 A.2d 653, 656-57 (Pa. 1974).
Robert A. Burke is a Partner with the law firm of MacElree Harvey. His practice is focused on complex commercial, estate and trust litigation. Bob can be reached at 610-840-0211.
