Trusts & Estates – Wills – Evidence – Probate Expert – Undue Influence Caveat

Where caveators’ expert would have testified about “attorney shopping” – a phenomenon which jurors could readily understand on their own – the trial court did not abuse its discretion when it excluded such testimony.

We find no abuse of discretion in the trial court’s limitation of the expert’s testimony. We dismiss caveators’ argument as to jury instructions because it was not preserved for appellate review.

The trial court did not abuse its discretion when it excluded caveators’ expert’s opinion testimony about “red flags of undue influence . . . like attorney shopping.” Such testimony could have invaded the province of the trial court to determine the applicable law and instruct the jury on the law of undue influence.

The trial court described the proffered testimony as “getting real close to the ultimate issue for the jury.” It is true that N.C. R. Evid. 704 says, “Testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

Nevertheless, when the proposed scope of an expert’s opinion pertains to an issue of law or amounts to a legal conclusion, a trial court may properly consider whether such testimony invades the province of the court to determine the applicable law and to instruct the jury as to that law. Opinions that state legal standards and conclusions are inadmissible, while opinions that state ultimate facts are admissible.

The trial court could have reasonably concluded that an opinion on the “red flags of undue influence” would have amounted to nothing more than an inadmissible opinion on whether legal standards have been satisfied or a comment on the legal effect of particular facts.

The expert’s opinions on the “red flags of undue influence” would also not be helpful and assist the jury as required by N.C. R. Evid. 702(a). To be helpful, the expert’s testimony must do more than invite the jury to substitute the expert’s judgment of the meaning of the facts of the case for its own.

After closing arguments, the trial court instructed the jurors that it was their “duty to consider all of the evidence” introduced and that they could determine the existence of undue influence from “all of the facts and circumstances.” The jury was also instructed on the law of undue influence.

Thus, the witness, by virtue of his expertise, was not in a better position to have an opinion on the subject of undue influence in this case than any member of the jury. His “red flags” testimony would have merely told the jury whether he believed any of the relevant factors of undue influence were present and invited jurors to substitute his judgment for their own. Therefore, the trial court did not abuse its discretion by excluding this testimony.

There was evidence that (1) propounder asked Kurt Fryar, an attorney who had represented the testatrix in the past, to draft another will for her; (2) Fryar said he would need to talk to the testatrix alone; (3) propounder did not call Fryar about the will again; (4) propounder hired Holt Moore to draft the testatrix’s new will; and (5) Moore did not speak with the testatrix alone. Based on this evidence, caveators’ expert would have opined that propounder was attorney shopping and that Moore was a tool used by propounder.

These opinions are not proper subjects of expert testimony because the opinions could not provide the jurors with any insight beyond the conclusions they could readily draw from their ordinary experience based on the evidence before them. The concept of attorney shopping is not so far removed from the usual and ordinary experience of the average person that expert knowledge is essential to the formation of an intelligent opinion. The trial court did not abuse its discretion by excluding the expert’s anticipated testimony about “attorney shopping.”

Finally, the trial court did not abuse its discretion by excluding the expert’s opinion testimony on whether Moore followed the guidance set forth in certain professional ethics opinions when he prepared the testatrix’s will. The trial court suggested these ethics opinions might be relevant in a trial against Moore, but ultimately ruled that these opinions would be inadmissible in the proceeding before it, a caveat to determine whether a will was procured by undue influence. The trial court did not abuse its discretion in excluding the expert’s proposed testimony regarding professional ethics opinions.

No error in part; dismissed in part.

In re Estate of Ward (Lawyers Weekly No. 012-074-18, 27 pp.) (Hunter Murphy, J.) Appealed from New Hanover County Superior Court (Anna Mills Wagoner, J.) . Mitchell Baker III for propounder; Scott Sherman for caveators. N.C. App. Unpub.