For those of you who may have seen my earlier articles about the OBA Trusts and Estates Section's excellent Will challenge program, this article will be covering the fourth session in the series, "Preparing for the Trial". In this fourth session, the panel explained the major stages of a Will challenge and how lawyers can best prepare for a trial.
Examinations
Examinations are a pivotal moment in litigation. Speakers discussed that the examinations vary in process depending on whether the matter is proceeding by action or application. Examinations for discovery in an action are far broader than cross-examinations in an application. In an application, questions are restricted to material in the affidavit.[1]
Obtaining the evidence of non-parties
In Will challenges, some of the key evidence may come from non-parties. The evidence of the parties themselves is often discounted because of their interest in the case. Because of this dynamic, the evidence of third parties (i.e. caregivers, drafting lawyers, medical professionals, and non-interested family members) will be of high value to the court. Panelists suggested that counsel should interview these non-party witnesses as soon as reasonably possible. If the estate is relatively small, however, the lawyer may consider waiting until after mediation to do so, in order to minimize costs.
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