error in finding a witness unavailable on the basis of a stated that the witness doctor’s letter “that was too ill to testify either in court or at where the for a continuance home” “contestant moved for the purpose of summonsing the doctor to determine if the witness was indeed ‘unavailable’ and to inquire into the competency at the time of p. 128 - 129. Thus, Id., witness’ execution.” the contestant may require the executor to prove with testimony the unavailability of a subscribing witness. As in any bench trial, the judge has wide discretion in the admission of evidence. Generally, witnesses will be permitted to testify to observations concerning the testator’s capacity and susceptibility to influence. 56 N.H. 227 (1875) (non-subscribing Hardy v. Merrill, lay witnesses may testify to observations regarding competency of testator); 67 Patten v. Cilley, N.H. 520 (1893) (witnesses may testify to susceptibility to influence). Under Rule testator’s 804(b)(5) of the New Hampshire Rules of Evidence, a hearsay statement by the testator shall be admissible so long as the court finds that the was made by [testator], and that it was “statement made in good faith and on personal both sides call [testator’s] knowledge.” Customarily, witnesses who recount many testator statements.
error in finding a witness unavailable on the basis of a doctor’s letter “that stated that the witness was too ill to testify either in court or at home” where the “contestant moved for a continuance for the purpose of summonsing the doctor to determine if the witness was indeed ‘unavailable’ and to inquire into the witness’ competency at the time of execution.” Id., p. 128 - 129. Thus, the contestant may require the executor to prove with testimony the unavailability of a subscribing witness. As in any bench trial, the judge has wide discretion in the admission of evidence. Generally, witnesses will be permitted to testify to observations concerning the testator’s capacity and susceptibility to influence. Hardy v. Merrill, 56 N.H. 227 (1875) (non-subscribing lay witnesses may testify to observations regarding competency of testator); Patten v. Cilley, 67 N.H. 520 (1893) (witnesses may testify to testator’s susceptibility to influence). Under Rule 804(b)(5) of the New Hampshire Rules of Evidence, a hearsay statement by the testator shall be admissible so long as the court finds that the “statement was made by [testator], and that it was made in good faith and on [testator’s] personal knowledge.” Customarily, both sides call witnesses who recount many testator statements.
Will-Contests-NH-Law.docx