Wills, individuals’ declarations of how they want their property distributed after their deaths, are the basic form of succession. In general, wills are characterized by three customary requirements: they must be written, they must be signed, and they must be attested to—that is, authenticated by witnesses. Of the three, the most formal—some would say, archaically so—and the most likely to act as an impediment, is the attestation requirement. All states currently dictate that between two and three witnesses formally attest to the validity of a will in front of a third party, often a lawyer, an accountant, or notary public. Under Utah law, there must be two witnesses. An experienced Spanish Fork Utah probate lawyer is your best source of information on wills.
If a person dies without a will, he is said to have dies intestate. Intestacy laws specify who inherits if the deceased dies without leaving behind a valid will. These rules differ from place to place in many details and have changed a lot over the years. But the general idea is everywhere the same: close relatives are preferred over those who are not so close. The system also prefers descendants to ancestors: your mother’s right to inherit would usually be trumped by your daughter’s. We also take it for granted that a person’s relatives on both sides of the family are equally entitled to a share. No American state prefers a mother’s brother to a father’s brother, or vice versa; this equality is the essence of the American kinship system. The American system is a mixture of various ways of distributing property at death. Strictly speaking, nothing you “own” is up for grabs; but this simply follows from the way society defines ownership. Succession taxes, the intestacy laws, and freedom of testation are all real aspects of our law of succession. A single simple idea lies behind the intestacy laws of today. If a person dies without a will, the property goes to a surviving wife or husband, to the children and grandchildren, and if there are none of these, then to closest relatives. Nobody else has any claim. In broad outline, this has been the practice for centuries. The proportions and the emphasis, however, have changed with the passage of time.
Two changes are of particular importance. The first is the merger of rules about real estate and rules about personal property. The second is the growing share of the estate that goes to a surviving spouse, at the expense of other possible heirs. This trend is connected to the trend mentioned in the Introduction: the shift from emphasis on the bloodline family to the family of affection and dependence.
Utah recognizes Holographic Wills. Holographic wills are handwritten wills. If you want to challenge a holographic will, speak to an experienced Spanish Fork Utah probate lawyer. One of the grounds for challenging a holographic will is that the handwriting is different. To prove that the handwriting on the will is different from that of the testator, you will need the services of an expert witness. Your experienced Spanish Fork Utah probate lawyer can help you find a handwriting expert.
Handwriting analysis involves the comparison of a questioned item with an item of known origin. Certain requirements must be met before a handwriting comparison can be made. The writing must be of the same type (e.g., handwritten or hand printed) and the text must be of a comparable sort (e.g., similar letter and word combinations). Special situations involve forgery, which is an attempt to imitate another’s writing, and disguise, which is an attempt to change writing style to prevent identification. The bases for comparison are the features or attributes that are common to both samples. The characteristics of the writings are also identified as class characteristics (the style that the writer was taught), individual characteristics (the writer’s personal style), and other gross or subtle characteristics. The attributes used for comparison of handwriting are twenty one so-called discriminating elements. The comparison is based on the principal that, although individuals have variations within their own writing, no two persons write the same way. The analysis compares variability among writers and variability within a single person’s writing, as shown in the samples. Determining that two samples were written by the same person means concluding that the degree of variability is more consistent with individual writing variations than with variations between two different persons.
Beyond these basic principles there is no dispute and no claim that there is an identified or accepted system for analyzing handwriting, and that the analysis and conclusions are subjective evaluations made by handwriting examiners.10 The emphasis, therefore, has been on training and testing persons to be considered handwriting experts. The American Society for Testing and Materials (ASTM) has developed a number of standards. The American Board of Forensic Document Examiners is a trade organization that provides for certification. Although that organization requires an undergraduate degree in some field, there is no formal educational or training requirement otherwise, and most handwriting analysts are trained in forensic laboratories.
The basic principles of handwriting analysis are generally accepted as plausible scientific hypotheses. However, scientists point out that this plausibility is based on intuition rather than scientifically established evidence. They point out that these conclusions are accepted as axiomatic by handwriting examiners when they have never been thoroughly tested using scientific methods. Determining whether each person’s handwriting is truly unique would necessitate a study of a large number of randomly chosen persons and the categorization and measurement of the multitude of possible variations. There are no standardized measurements and there is not even a public record of handwriting samples which can be scientifically used to develop such measurements or to test the basic underlying theories of handwriting analysis.
Who Is an Expert?
What qualifies you as an expert witness? In looking for an expert witness, an experienced Spanish Fork Utah probate lawyer will the education and experience, licenses and certifications, the articles the expert witness has written, the courses or seminars you presented, and the opinions of peers. A specialization in a particular area makes an expert witness a valuable resource to legal counsel.
As an expert, the witness will typically be asked to evaluate and give opinions in the area of expertise.
When hire an expert witness for your probate litigation, be sure you clearly establish the expert’s designated area of expertise and the scope of the assignment. Once you have learned the background of the expert, feel free to turn down if it does not seem “right” to you. This saves potential embarrassment down the line.
Preparing to Testify
An expert witness, will be called on to offer his professional opinions and must be prepared to back them up in court. Before taking the stand, it is vital that the expert witness adequately prepares for the job ahead.
* Obtain all pertinent information regarding the case (names of plaintiff and defendant, date and location of incident, name and firm of opposing counsel). Be sure that there are no conflicts of interest.
* Work with the attorney to thoroughly understand the issues of the case and the role the expert will play.
* Evaluate the issues in light of professional standards of care and custom and practice criteria.
* Verify opinions with other experts and with available written sources. If the opinions of others are being used by your expert, be prepared to give their names and credentials.
* Review any opinions given by the expert or other experts in similar cases. This is particularly important if the expert’s opinion will differ significantly from past opinions. The expert must be prepared to explain why the current case is different.
* Study the statements of opposing counsel’s experts for any errors or inconsistencies that can be challenged in court. (Keep in mind that the opposition will be reviewing the expert’s findings in the same way; so it is a good idea to review your expert’s work with a critical eye before submitting it.)
* Try to anticipate the line of questioning set forth by the opposing counsel, and prepare your responses. Answer only after listening to the complete question; ask counsel to repeat or rephrase a question if it is not perfectly clear.
Types of Testimony
As an expert witness, the expert will also be called upon to testify in different venues. An interrogatory consists of responding to written questions submitted by opposing counsel during pre-trial proceedings called discovery. These answers are given under oath and should correspond to answers the expert gives at the trial. Otherwise the expert testimony will be impeached.
A deposition is a verbatim account of sworn testimony. Depositions are taken informally and recorded by a court reporter, and again you are under oath. Opposing counsel will often use the deposition process to test your knowledge and familiarity with the case at hand.
A hearing is a proceeding limited to specific legal issues and points of law. Expert witnesses are called less often at the hearing stage, although the expert witness may be called to testify if questions arise about whether or not there is sufficient evidence to proceed in the case or if the proceeding is an administrative hearing. Once again, the answers are given under oath.
Finally, there is the trial, which follows more formal courtroom procedures. Here, the facts of the case are explored and issues are examined and cross-examined.
Taking the Stand
The expert witness’ preparation culminates in the testimony. The expert begins by stating his or her name, work history, and professional qualifications. In general, these facts will not be disputed, although remember that it is the opposing counsel’s job to find anything that weakens the expert status.
Direct examination will give an expert the best opportunity to present his findings. The expert witness should rehearse his testimony with your experienced Spanish Fork Utah probate lawyer so that the expert will know how the probate lawyer wants to proceed.
In cross-examination, the opposing counsel’s goal is to discredit the expert testimony. The expert witness should answer all questions, but keep the= answers short and to the point. Most of the time a “yes” or “no” will suffice.
During redirect examination, your attorney will try to disprove any points made by opposing counsel. Use this opportunity to reinforce any points that were questioned by the opposition.
Before you hire a handwriting expert to challenge a holographic will in Utah, speak to an experienced Spanish Fork Utah probate lawyer.
Hire an experienced Spanish Fork Utah probate lawyer
Utah probate law is complex. When a will goes through probate, anyone who feels that they have been wrongly left out of the will can challenge the will. Challenging the will isn’t easy. If you are challenging a holographic will and you are claiming that its not in the handwriting of the testator, hire the services on an experienced Spanish Fork Utah probate lawyer. Merely claiming that the handwriting is different will not suffice. You have to prove that the handwriting is different. For this, you must provide evidence. The evidence that you are allowed to produce in the probate court is determined by the law of evidence. The law of evidence is complex. It’s certainly not your cup of tea or coffee. Don’t take chances. If you don’t provide evidence in support of your claim that the handwriting on the will differs from the handwriting of the testator, your case will be thrown out. Ignorance of the law is no excuse. An experienced Spanish Fork Utah probate lawyer is your best source of assistance.
If you believe that the handwritten will that someone is claiming to be written by your deceased relative is in fact not written by that relative, contact an experienced Spanish Fork Utah probate lawyer. You must act fast. You must file your opposition to the will during the probate process. Once the will has passed through probate and the executor has distributed the estate according to the will, it will be too late. The best time to challenge the will is during probate.
Spanish Fork Utah Probate Attorney Free Consultation
When you need legal help with a probate, will, or trust in Spanish Fork Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506