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The Prejudice Against Seniors' Testimony In Probate Litigation

When estate matters are resolved through litigation, elders are often asked to testify. They might be a friend or relative of the deceased or the deceased's family; they might be in line to receive benefits from the estate. Oftentimes, a great many assets are at stake. Yet opposing counsel frequently try to cast doubt on elders' ability and capacity to give testimony, seeking to have their accounts dismissed.

The most common objection to a senior's testimony is that he or she is incapacitated in some way that calls into question their account's credibility. Such claims can, however, be successfully challenged.

Incapacitated vs. Impaired

It is no secret that seniors are susceptible to a range of age-related cognitive impairments. In addition to Alzheimer's and dementia, there are issues stemming from senility and everyday forgetfulness.

Yet there is a marked difference between being incapacitated and being moderately impaired. And indeed, under the law impaired individuals may give credible testimonies. Especially in cases where one can demonstrate the senior has a personal relationship to the family or issues at the center of a given lawsuit, their account can - and should - be entered into proceedings.

Supporting elders' testimonies

To this end, medical records, doctors' affidavits and additional witnesses who can support an impaired individual's claims can be used to bolster a questionable testimony. In such cases, it is clearly advantageous to find a knowledgeable lawyer who is skilled in validating witness accounts.

Ultimately, it is up to the judge to determine what testimonies are admissible. By gathering evidence to corroborate an individual's account - and to counter any challenges made by opposing counsel - an elder's story will be more likely to stand in court, and help to resolve a matter in the most favorable possible manner.

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