Law Tips – Evidentiary Matters, Estate Litigation

Estate & Trust Litigation: Are evidentiary matters privileged or non-privileged? 

Are evidentiary matters privileged or non-privileged? How can you protect the confidentiality of your client’s capacity assesment? Answers to these questions are offered by John Cremer, Cremer & Cremer, Indianapolis, during his educational presentation on Dementia Pathology and Assessment in Estate and Trust Litigation.  I am pleased to bring our Law Tips readers a sampling of this popular Elder Law Institute session.

Let’s begin with John’s review of the issues surrounding experts and treating physicians:

As a general proposition, the physician patient privilege can only be waived by the patient, a healthcare representative of the patient, or the personal representative after death, Canfield v. Sandock, 563 N.E.2d 526 (Ind. 1990).  However, when soundness of mind is an issue in a will contest, the parties to the suit may waive the physician patient privilege (Haverstick v. Banet, 370 N.E.2d 341, 267 Ind. 351, 1977).  Accordingly, a capacity based challenge to a will or trust will generally open up the medical record to discovery by the parties, along with the physician’s testimony regarding diagnosis, treatment, opinions, etc.

With respect to the forensic examiner performing a post-mortem review of the decendent’s medical records for purposes of litigation, once the examiner is identified as a testifying expert, all communications with and findings of the examiner are discoverable.

Continuing  Mr. Cremer’s coverage of evidentiary matters, he provides the following important advice on your use of consultants:

The attorney involved in a will and trust contest who engages the services of a forensic examiner should never identify the examiner as an expert witness until the results of the examination are known.  As long as the attorney uses the examiner as a non-testifying consultant, the attorney is permitted to shield all communications with the examiner, along with the examiner’s report, from discovery under the work product privilege.

The more tenuous question is presented when the drafting attorney is asked to prepare a will radically changing the estate plan of a client who presents with cognitive deficits of an undetermined degree.

If there is a substantial likelihood that the will or trust will be challenged, upon what basis may the lawyer direct a capacity assessment of the client and maintain its confidentiality should the report be unfavorable?  There is some support for the position that the report and all communications related thereto, may remain confidential under the work product exception if all of the following conditions are met:

  1. The capacity assessment is performed solely at the direction of the lawyer;
  2. The lawyer outlines for the medical professional the testing procedure and requests an oral report in advance of a written report to cover the desired capacity issues; and
  3. If the report is not favorable and it is reduced to a written report, the report itself and all notes and testing data are retained by the lawyer as work product unless and until the lawyer receives a court order directing disclosure.  ACTEC JOURNAL Winter 2001 – Evidentiary Issues Involving Pre-Execution Practice and Drafting Part I, ACTEC Fiduciary Litigation Committee.

Clearly, if the capacity assessment is performed during the routine course of the estate planning, the report and all materials in relation thereto are discoverable in capacity based litigation involving a will or trust.

In summary, John Cremer offers this expert opinion for protecting your estate planning clients:

Understanding the differences between capacity in the medical/clinical setting and in the legal setting is the key to anticipating, and preparing for a capacity based challenge to a will or trust.  It is not an exact science and, it is the author’s experience that the trier of fact’s perception of the fairness of the transaction, in many cases, is the overriding factor which leads to a particular result.  However, there is no substitute for advance preparation when faced with a client with diminished capacity.  The capacity assessment, if performed pursuant to the proper parameters, can be a compelling tool to assist the client and protect the estate plan.

Thanks again to John Cremer for contributing to Law Tips and for his participation as an ICLEF faculty member.  You will find the Elder Law Institute CLE on our video replay calendar in January or choose your own time and location through our On Demand programming. Also, in related areas of law, you may find helpful our Estate & Trust Administration Series and/or 120 Hot Tips in Probate, Guardianships, Trusts & Tax. Choose the quality CLE that suits you!


About our Law Tips faculty participant:
John A. Cremer of Cremer & Cremer, Indianapolis, was admitted to the Bar of  Indiana in 1989 after receiving his J.D. from Indiana University.  He served as Co-Chair of the ICLEF Probate Litigation Seminars in October 1994, May 2000, December 2004, May 2009 and November 2011. For the past seven years, he has been the contributing editor to Henry’s Indiana Probate Law and Practice. John is a member of the Indianapolis, Indiana State and American Bar Associations; ACTEC; Indiana Bar Foundation; Estate Planning Council of Indianapolis. He practices in the following areas: Trust and Estate Litigation; Estate Planning; Estate Administration, Appellate Practice.

About our Law Tips blogger:
Nancy HurleyLaw Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy.  She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you onLaw Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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