Trusts and Estates

Ca. Trs. & Estates Quarterly Volume 11, Issue 3, Fall 2005


By Darrell Thompson, Esq.*


Litigation of trust and estate matters more often than not presents difficult evidentiary issues. These generally arise because of illness, mental incapacity or death. Consequently, it becomes necessary to rely on statements recalled by percipient witnesses on the critical issue of testamentary intent. Such statements are hearsay if offered to prove the truth of the matter asserted.1 They include oral or written verbal expressions, as well as nonverbal conduct intended as a substitute for oral or written expression.2

Courts have traditionally excluded hearsay because of its perceived unreliability, and the inability of the trier of fact to assess the credibility of the witness under direct and cross-examination. In trust and estate matters, witnesses may have intentionally been told different things by the declarant, who was motivated to avoid harassment, confrontation or the fear of offending a loved one. Recollections often conflict and may be influenced by biased perception or rationalized to protect an economic interest. Despite obvious concerns, hearsay is often the only evidence available regarding intent, capacity or undue influence.

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