Expert Witness Blog

In Testamentary Capacity to Execute a Will and Mental Competency to Execute a Trust or Contract, forensic psychiatry expert witness Stephen M. Raffle, M.D., writes:

A Will is not a contract because it does not represent a promise to perform a service or execute an action for another person (including corporations). It is solely an allocation of a person’s wealth on death. A contract, such as a Trust, implies the potential for an adversarial relationship if one of the parties does not perform as promised. In a Trust the parties may be the Trustors and the Trustees. Therefore, an adversarial relationship potentially exists between the parties. Because of this potential adversarial relationship, each of the parties must be able to understand the consequences of their actions vis-à-vis being in default. This requires each party to be able to understand with meaning (mental competency) the terms and conditions of the contract which may themselves be complex and require multiple steps. For this reason the mental state required to enter into a contract requires an understanding of consequences and an ability to understand complex meanings contained within the contracted obligation, neither of which is explicit or implied in the execution of a Will.

Mental competence to enter into a contract has a higher threshold than mental competence to execute a Will. It is therefore possible for a person to retain testamentary capacity but not be competent to execute a Trust.

In Undue Influence in Making Bequests: A Forensic Psychiatrist Examines the Evidence, undue influence expert witness Stephen M. Raffle, M.D., writes:

Undue influence when creating a will, codicil to amend a will, trust or other legal instrument, occurs when the conduct of another prevents a testator (or anyone for that matter) from exercising his or her free will. The occurrence of undue influence is established by demonstrating that the testator’s testamentary disposition was caused by undue pressure, argument, or other coercive acts which destroyed the testator’s freedom of choice in the disposition of the assets of his or her estate, and is replaced by the substituted judgment/wishes of another. Litigants may characterize the circumstances as perceived or misperceived exploitation of a vulnerable individual, especially as we see a generation of baby boomers reach ages at risk for dementia and Alzheimer’s, both medical conditions best assessed by a medical doctor. Undue influence may be proven with circumstantial evidence, i.e., without direct evidence. It is necessary to demonstrate by fact that undue influence has occurred. Often the term “undue influence” in a testamentary setting is lumped with the phrases “testamentary capacity” and “competency” to make a Will or Trust. A dispute about testamentary capacity may arise in the same case as undue influence, but from the forensic psychiatrist’s point of view, the issues are different. The making of Wills vs. Trusts have different thresholds of competency and the distinction is important to understand when evaluating if susceptibility to undue influence is considered.

There are various indicia of undue influence. Those indicia include, but are not limited to, the following:

In Choosing an Orthopedic Surgery Expert Witness, Burton Bentley II, M.D FAAEM, writes:

Orthopedic surgery (commonly spelled “Orthopaedic” in academia) is a field of surgery dealing with the surgical treatment of disease and injury of the musculoskeletal system. Orthopedic surgeons are licensed physicians who complete a five year residency program in orthopedic surgery often followed by subspecialization in a specific branch of orthopedic surgery. Common subspecialty areas include Hand Surgery, Total Joint Reconstruction (i.e. arthroplasty), Pediatric Orthopedics, Foot and Ankle Surgery, Spine Surgery, Sports Medicine, and Trauma. Board certification in Orthopedic Surgery is conferred by the American Board of Orthopaedic Surgery, a section of the American Board of Medical Specialties (ABMS). Physicians who enter the field of orthopedics via an osteopathic pathway (D.O. rather than M.D.) are eligible for Board Certification under the American Osteopathic Board of Orthopedic Surgery.

Orthopedic surgeons diagnose, image, medically treat, and surgically correct a broad range of musculoskeletal conditions. Common procedures in orthopedic surgery include arthroscopic surgery upon the knee and shoulder, joint replacement surgery (predominantly upon the hip and knee), spine surgery, and carpal tunnel release. The foundation of orthopedics, however, is the stabilization and treatment of various fractures. Fractures may be treated non-operatively (closed reduction) or operatively (open reduction). Some fractures may require internal hardware (internal fixation) while others require external hardware (external fixation) or no hardware at all. The most common fracture sites include the hip (e.g. femoral neck), ankle, tibia, wrist (radius and/or ulna), humerus, and clavicle. Other acute conditions in orthopedic surgery include compartment syndrome and the management of complex bone and joint infections. Depending on the complexity of the procedure, orthopedic interventions may be performed in the office, in an outpatient surgical facility (ambulatory surgery center), or in a hospital-based operating room.

Explosions expert witnesses may consult on flammable materials, fire & explosion analysis, and natural gas explosions, as well as related matters. Investigators have reported that the cause of an explosion last week in Stafford Township, NJ, was a crack in a gas line. Firefighters, paramedics, and New Jersey Gas employees were injured. The shock wave from the explosion flattened one home and damaged a score more.

Commonly used for heating, natural gas, methane, propane and butane make up the majority of residential gas explosions. After a 127 year old gas main exploded in East Harlem, NY, in 2014, Natural Gas Watch.org wrote that natural gas explosions seem to be occurring with disturbing regularity in the US.

There are more than 5,000 miles of natural gas pipeline beneath the streets, homes and buildings of New York City and according to public records, a significant portion of that underground pipeline is made of aging cast iron that’s prone to leak. Indeed, hundreds of miles of this pipeline are at least 100 years old and some of it even dates back to 1889.

Natural Gas Watch.org reported in 2014:

In A Review of BMC Software, Inc. v. Commissioner of Internal Revenue: Should Intercompany Accounts Receivable Be Considered “Debt”? Samuel S. Nicholls of Willamette Management Associates writes:

In the matter of BMC Software, Inc. (“BMC”) v. Commissioner, the U.S. Tax Court (the “Tax Court”) ruled on the definition of “debt” as it relates to intercompany indebtedness between a U.S. tax¬payer and its foreign subsidiary.

At issue in this decision was the BMC accounts receivable owed from its foreign subsidiary, BMC Software European Holding (BSEH). This accounts receivable was created as a result of a transfer pricing settlement between BMC and the Internal Revenue Service (the “Service”) in 2007.

In Myocaritis in Children: A Diagnosis to Consider in the Pediatric Emergency Department, a board certified pediatric emergency medicine expert witness explains that myocarditis, or inflammation of the heart muscle, may result in significant heart malfunction or death. This is a condition that may result in misdiagnosis and is important for the pediatric emergency medicine physician to be familiar with and consider.

In children, the most common reason is due to a viral infection. Other causes include Lyme disease, Rocky Mountain spotted fever, toxic shock syndrome, fungus infections and or parasites.

Since myocarditis in children may mimic other conditions, the diagnosis of myocarditis is challenging. It is a rare condition, with common symptoms that the pediatric emergency medicine provider may encounter with other common conditions.

In Are We Nearing a Global Turning Point?, business expert witness Douglas E. Johnston writes:

Several important economic factors appear to be moving unfavorably for the US at the moment, both domestically and abroad, and there are increasing indications that America may not be able to orchestrate a hoped-for global resurgence on its own. Despite encouraging signs of domestic recovery, fundamental structural problems persist in the US economy. The National Debt now exceeds $18 Trillion, the Department of Agriculture confirms that well over 46 million Americans continue on food stamps, and key voices have stepped forward asking for a deeper look at several U.S. economic statistics.

Last week long-time Gallup CEO Jim Clinton very boldly drew attention to the government’s recent 5.6% unemployment numbers, questioning them as overly optimistic interpretations of data, and noting on CNBC that the percentage of Americans holding full-time jobs is now the lowest in 60 years. Former US Asst. Treasury Secretary Dr. Paul Craig Roberts added more to the unemployment conversation recently when he calculated that the true US jobless rate may reach nearly 23% after adding back several categories of workers who have now given up looking for work. Several other media sources including CBS Radio have reported that as many as a record 92 million Americans may now be now functionally unemployed.