Expert witnesses can be expensive. Yet, in estate disputes, they may be unavoidable. When a will gets challenged based on an alleged lack of testamentary capacity or undue influence, you can all but guarantee that the decedent’s treating physician and medical records will make an appearance. On the other side, the parties will line up the decedent’s friends, family, associates and the like who interacted with the decedent around the time the will was executed to claim the decedent either lacked capacity or was totally competent. But, are these lay witnesses enough to overcome the doctor? Perhaps not.

The Supreme Court of Appeals of West Virginia‘s opinion in Merritt v. Wolford provides a good example of what often happens when a party tries to combat an expert with lay testimony – it does not work out well for the party relying solely on the lay witnesses.

The decedent’s will was challenged based on alleged incapacity and undue influence. The party supporting the will offered the testimony of the decedent’s doctor at the time of the will execution. The doctor testified that there was never a time that he held the medical opinion that the decedent could not care for himself or make medical and financial decisions. In an attempt to support their claims of incapacity and undue influence, the other side offered affidavits from lay witnesses that made “general allegations” that they believed the decedent was confused, had memory loss, and had a declined mental ability. The court found that the lay witness testimony was “in stark contrast” to the expert testimony and did not create enough of a factual issue to proceed to trial.

Where does that leave a party challenging the treating physician’s ‘expert’ testimony? A well-executed cross-examination may be able to ‘flip’ the other side’s expert and make his or her testimony work in the challenging party’s favor. Absent that, a testifying expert may be a necessary expense when capacity is at issue.