ASK OUR LAWYER
BY ROD TAYLOR
March 2000

Q: My mother lives out of state and has been assisted in her activities by the next-door neighbors. My mother has a will that leaves her estate (not large, but a nice chunk of change) to her children and grandchildren, but I recently found out that she may be attempting to change her will to leave the estate to the next-door neighbors. What can I do to prevent her from doing that?

A: Unless you want to take drastic measures, there's not much you can do to prevent someone from changing a will. Any competent person can execute a will, so unless you can have your mother declared legally incompetent, you can't prevent the execution of a new will.
However, there are alternatives. A will can be disregarded by the Courts in probate proceeding if there had been "undue influence" on the testatrix during the drafting of the will. That is, if the writer of the will was being manipulated or coerced into changing the terms of the will or the beneficiaries of the will, then the will can be challenged in court. If you can produce evidence that you mother was being influenced by her neighbors to change her will, then the court can throw out the will and proceed under a previous will or as if there was no will.

Q: Why aren't polygraph tests admissible in court?

A: Polygraph machines, also called (inaccurately) lie detectors. The work by tracing a test subject's reaction to various questions. The questions, asked by the polygraph examiner, range from innocent (for example, 'how old are you?') to accusatory ('did you rob the A-1 liquor store'). Based on the physiological responses of the subject monitored by the polygraph machine, a trained examiner can determine if some of the questions asked engendered a higher stress level than others. Along with some elementary psychology and physiology, the examiner can then offer an opinion as to whether the person answered the relevant questions truthfully.

Courts, however, do not accept the results of a polygraph examination as evidence in a trial. There are several reasons for this refusal. Primarily, the results are excluded because of the prejudicial effect of such evidence. Also, the results, since they are required to be interpreted, are subjective in nature, rather than objective. For example, whether a bullet was fired from a particular gun or not is an objective test - either it came from that gun or it didn't. Determining whether a particular individual committed a particular crime, based on a polygraph examination, involves too many variables for a court to consider the test reliable enough to overcome the inherent prejudice. For example, a person who is nervous about being questioned may react poorly to the polygraph and give a false reading. To have that false reading admitted into a court proceeding would be extremely prejudicial to the accused.

Q: We had an ABATE region meeting in our backyard, and a non-member who was present left the party and was involved in an accident where he hit a bus full of lawyers [Rod Taylor's exaggeration], which then careened over a cliff into a gravel pit. Do we have any liability for the damages (assuming there are any?)

A: Probably not, assuming that you took some elementary precautions when organizing the party. That doesn't mean that you won' get sued, but the odds of being found liable are smaller if you follow some simple rules. First, don't serve obviously intoxicated persons. If you are actually serving all your guests, you incur the responsibility of not serving an obviously drunk guest. While the dram shop laws may not apply to private individuals, the fact that you are hosting an ABATE function may implicate the club. Better safe that sorry and not take the chances. Also, you may want to offer alternatives to drivers who may be impaired. You can offer to call a cab for them, or see if a friend can take them home, or let them camp on the couch. You are not required to actively prevent them from leaving or to call the cops if they do leave, but intervening early may prevent a down biker later.

P.S. By the way, some folks have asked if there was a reward!