Discovery in a will contest

Discovery is the phase of a will contest that happens after the lawsuit is filed and before the case goes to trial. It is the process of uncovering facts supporting either side of the case. During discovery, each side can obtain information and documents from the other side using a variety of instruments, such as Interrogatories, Requests for Production, or depositions. With good lawyering, the parties will already have a basic understanding of the facts. But the discovery process allows the parties to uncover additional evidence, including regarding the assets at issue. And most importantly, it allows for putting the opposing party under oath in a deposition.

There are two general classes of discovery: fact and expert. Fact discovery involves obtaining testimony and documents from witnesses who can testify from personal knowledge and observations. Expert discovery involves obtaining opinions from persons who were not personally involved in the underlying circumstances, but who can render opinions based on their review of the evidence. Experts in a will contest are typically physicians who render opinions regarding the mental capacity of the testator.

The rules of discovery in a will contest are generally the same as for other civil lawsuits. One unique feature involves the attorney-client privilege. That privilege shields from discovery communications between a lawyer and their client, including much of the contents of a lawyer’s file. However, in a will contest, very often, the attorney who represented the deceased is in position to offer important testimony on contested issues of mental capacity and potential undue influence.

Texas Rule of Evidence 503(d)(2), carves out an exception to the attorney client privilege:   As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos  transactions.  This exception is typically going to apply in most estate disputes, such as a will or trust contest where competing persons are claiming the rights to a deceased person's assets.

Discovery is also important to uncover the assets of a decedent. This would involve obtaining bank and brokerage account records. It also may involve searching real property deed records.

It is extremely important to develop a discovery plan in the early stages of a will contest, whether you are contesting or defending the will.