You must have evidence if you want to win at trial. But what is evidence?
There are three types of evidence: facts, witnesses, and documents.
And most facts will be introduced at trial through either a witness or a document, or sometimes both.
Evidence further comes in two broad varieties: direct and circumstantial. Direct evidence would be testimony from a person who witnessed the bad act. For example, if you saw someone rob a bank. For Trust contest cases, direct evidence is anyone who witnessed the undue influence. But there are usually only two people who see undue influence directly: (1) the person being coerced, and (2) the person doing the coercing. The person being coerced isn’t typically available as a witness because they are usually deceased when the Trust contest is filed. And person doing the coercing is not going to testify as a witness against themselves. As such, nearly all undue influence cases rely on circumstantial evidence.
Medical records are a great example of circumstantial evidence.
If an elder’s medical records show that they were suffering from dementia around the time the new Trust was signed, that could prove that the elder was either incapacitated or susceptible to undue influence. Medical records do not directly prove that undue influence occurred. They also do not directly prove a lack of capacity at the moment the new Trust was signed. But they do provide circumstances that could lead to a reasonable conclusion that a Trust was signed under undue influence.
Another great source of evidence are financial records. Many times, the financial records will also provide circumstantial evidence. For example, when money begins to be siphoned off either to the bad actor, or to things that are for the benefit of the bad actor, that could be a sign that someone is up to no good.
As for witnesses, nearly every Trust contest case will have people who must be deposed. The attorney who drafted the Will or Trust that is being challenged, the treating physician, and any friends or neighbors who are familiar with the events that occurred are great witnesses. In fact, they are necessary witnesses to your case.
And don’t forget about expert witnesses. For example, medical doctors who must review the medical records and give their opinion in court on whether or not the decedent suffered from lack of capacity or was susceptible to undue influence. These medical experts will not decide capacity or undue influence, but they will provide helpful opinions to the court.
These are just a few prime examples of the types of evidence you will need in your Trust contest lawsuit. The more evidence you can find, the better.
