The use of forensic document examiners in Florida will contests.

AuthorBicks, Peter A.

A practitioner conducting discovery of the opponent's FDE should consider using expert interrogatories first and then following up the interrogatory responses with a complete deposition of the expert

This article addresses the use of forensic document examiners (FDEs) in Florida will contests. In particular, it will discuss the strategic considerations for the use of FDEs in a will-tampering or "spoliation"[1] case, and generally discuss Florida law regarding FDEs in will contests.

The first decision is whether to retain an FDE. This decision turns on several issues, including the nature and strength of the claims, the quality of lay witness testimony, and whether the opponent will use expert testimony. Once the decision to retain an FDE is made, the practitioner must decide on the type of FDE to retain and whether the FDE will testify at trial or merely assist with trial preparation and consult during the course of the trial. Also, on an ongoing basis, the practitioner should consider Florida's evidentiary rules and discovery practices concerning experts. These considerations are integral to the successful use of an FDE in will contests.

A will contest involving allegations of will-tampering or spoliation may lend itself to the use of an FDE. The FDE's essential task is to inspect and test the original will to determine its authenticity. In performing this inspection and testing, the FDE should examine, inter alia, the handwriting, typing, type font, paper, inks, staple holes, indentations, and format of the will. In the hands of an FDE, the pedestrian qualities of an ordinary document are clues to its integrity, sanctity, history, and creation.

The decision to retain an FDE should be made at the outset of the case. Although an FDE can educate and help the practitioner understand contested evidence, the most pragmatic reason for timely retention of an FDE is that there may be few qualified and effective FDEs in a given locale, and retention of a leading FDE should keep the adversary from retaining that same expert. The practitioner should enter into a confidentiality agreement with the retained FDE that cloaks all information with the protection of the attorney work product doctrine.

The decision to use an FDE often turns on the strength of the lay witness testimony to the will's execution. Take, for instance, the facts of a fairly typical will contest: dissatisfied with the bequest provided for in the probated will, the challenger seeks to set aside that will in favor of another will on the ground that the former has been spoliated (e.g., additional pages or provisions were added after the testator's death, or the testator's signature was altered post-execution). Conversely, the will's proponent contends it is a valid, duly executed will and proffers eyewitness testimony to its execution. The challenger may rely on expert opinion to support allegations of spoliation and documentary legerdemain. For instance, the challenger's FDE may scrutinize documentary irregularities (such as inconsistent inks, paper impressions, staple holes, and variations in the type of paper) to reveal fraud and deceit. The will's proponent will tend to rely heavily on execution witness testimony to support it.

Florida Law on Expert Opinion Evidence in Will Contests

To determine how best to use an FDE, the practitioner should consider Florida law governing the burdens of proof in a will contest and on expert opinion evidence. In a will contest, the will's proponent has the initial burden to make a prima facie showing of due execution and attestation. F.S. [sections] 733.107. The proponent can satisfy this burden either through the testimony of one witness to the will's execution or with a showing that the will is self-proving (i.e., that the will contains a self-proof affidavit stating that the will was signed pursuant to Florida law and contains the notarized signatures of the witnesses and the testator). F.S. [sections] 733.201; F.S. [sections] 732.503. See, e.g., Blits v. Blits, 468 So. 2d 320, 321 (Fla. 3d DCA 1985) (allowing a self-proved will to be admitted to probate without testimony of attesting witness). Thereafter, the challenger has the burden to prove, by a preponderance of the evidence, facts sufficient to warrant revocation. F.S. [sections] 733.107; Estate of Carpenter, 253 So. 2d 697, 700 (Fla. 1971); Estate of Knight, 108 So. 2d 629, 631 (Fla. 1959).

Florida case law demonstrates that expert opinion--unsubstantiated by any corroborating facts--is afforded very little, if any, weight when standing opposed to unimpeached, credible eyewitness testimony. In Dozier v. Smith, 446 So. 2d 1107 (Fla. 2d DCA), rev. denied, 459 So. 2d 1041 (1984), the court held that the testimony of two handwriting experts that the decedent's signature was forged was insufficient as a matter of law to overcome the unimpeached testimony of the execution witnesses.[2] In Dozier, the court discounted the expert witness reports even though the judge noted that the circumstances of the will's execution were "superfluous or even peculiar."[3] Similarly, in In re Estate of Grant, 123 So. 2d 560, 561-62 (Fla. 2d DCA), cert. dismissed, 127 So. 2d 892 (Fla. 1961), the court favored credible eyewitness testimony over expert opinion on whether a will was a forgery in affirming the denial of a petition to revoke the probate of the originally filed will.

If the eyewitness testimony is not credible, expert opinion alone may be sufficient to establish a will as a...

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