UNDUE INFLUENCE AND INCOMPETENCE CASES IN THE PROBATE COURTS

Thursday, September 20, 2007
4:00 p.m. – 7:00 p.m.

Sponsored by: Fiduciary Litigation Committee of the Trusts & Estates Section

An aging population is spawning a flood of litigation in the Probate and Family Court involving wills, trusts and conveyances.  Simultaneously, a growing body of medical evidence in this area is casting new light on how undue influence and incompetence is proven.  The new Appeals Court decision in Estate of Moretti may shift the burden of proof to parties who have thought their actions were safe from any real scrutiny. Inconsistent evaluations by treating physicians often make trial of these cases challenging and the outcomes depend on expert testimony.  

This expert panel will discuss approaches to pleading and trying cases of undue influence and incompetence, with a focus on emerging medical information on the roles of memory and judgment in decision making.  Attendees will learn how to marshal, evaluate and present medical evidence and important considerations for the use of expert witnesses.  Judges on the panel will offer practical tips as to what evidence and arguments are most convincing in this developing area of the law. 

Specific topics will include:

1. Rule 9 and pleading allegations of undue influence and incompetence.
2. The evidence needed to establish or shift the burden of proof.
3. The practical differences in the case resulting from burden shifting.
4. New considerations in light of emerging medical and neurological studies and what they tell us about decision-making capacity.
5. The aspects of cognitive ability that are important to evaluating susceptibility to
   undue influence and incompetence.
6. The varying degrees of cognitive impairment, and how this affects proof of undue influence or incompetence.

Panelists

The Honorable Christina L. Harms
Associate Justice, Norfolk Probate and Family Court

The Honorable Robert W. Langlois
First Justice, Middlesex Probate and Family Court

James C. Beck, M.D., Ph.D.
Massachusetts General Hospital
Harvard Medical School

Judith G. Edersheim, M.D.
Massachusetts General Hospital

Edward Notis-McConarty, Esq.
Hemenway & Barnes

Robert J. O’Regan, Esq. – Program Chair
Burns & Levinson LLP

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