The testimony of elderly witnesses is often necessary in trust and estate litigation. When preparing for trial involving an elderly witness, counsel should anticipate the potential issues involving disqualification of the witness based on incapacity or exclusion of testimony based on lack of personal knowledge.
In some instances, the elderly witness is disqualified from testifying based on incapacity. A person may be disqualified to be a witness if he is incapable of expressing himself concerning the matter or incapable of understanding the duty to tell the truth. (Evid. Code, §701) The party objecting to a proffered witness has the burden of proving the witness’ lack of capacity. (Comment to Evid. Code, §405)
However, a more common situation is when an elderly witness is not “incapacitated,” but suffers from some form of cognitive impairment. If a witness is not disqualified based on incapacity, his testimony on a particular matter is admissible if the witness has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (Evid. Code, §702(a)) The court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that the witness has such knowledge. (Comment to Evid. Code, §701) Therefore, the Evidence Code has made a person’s capacity to perceive and to recollect a condition for the admission of his testimony concerning a particular matter instead of a condition of his competency to be a witness. (Comment to Evid. Code, §701) If there is evidence that the witness has the capacity to perceive and recollect, the determination whether he in fact perceived and does recollect is left to the judge or jury. (Comment to Evid. Code, §701)
When preparing for trial involving an elderly witness, the attorneys should be prepared with medical evidence to support their respective positions regarding capacity and, if the witness actually testifies, be prepared to question the witness regarding his personal knowledge of the matter