The death of a parent is not easy to handle, no matter how old you are when it happens. If your father recently passed away, you are undoubtedly still grieving the loss. Finding out that your father executed a last minute “death bed” Will has you wondering if you can contest that Will. An Indianapolis estate planning attorney at Frank & Kraft discusses the legality of a death bed Will and what you would need to prove to successfully contest that Will.
The “Death Bed” Will
Any competent estate planning attorney will tell you that an estate plan should be created with care, using the advice and guidance of an experienced attorney, and should be reviewed and revised on a routine basis to ensure that it keeps pace with the creator’s growing estate and family. For most people, a Last Will and Testament serves as the foundation of that estate plan because a Will can distribute your entire estate. Occasionally, however, a “death bed” Will is executed by a Testator.
As the name implies, a death bed Will refers to a Will that is executed (or spoken in the case of an oral Will) when the Testator knows that death is imminent. Sometimes an individual has simply put off creating a Will and a death bed Will serves as the only Will ever created by the Testator. Other times, however, a death bed Will purports to revoke a previously executed Will. It is under these circumstances that a Will is frequently contested because the new Will almost inevitably disinherits someone unexpectedly and/or gifts significant assets to someone who was not designated as a beneficiary in the previous Will.
Can a Death Bed Will Be Valid?
If your father created a death bed Will, and you want to contest the Will, the first question you need to answer is whether or not a death bed Will can ever be valid. The simple answer is “yes.” In Indiana, a Will must be in writing (except under very narrow circumstances discussed below) and witnessed by two disinterested witnesses. A handwritten Will can be valid if it meets the other requirements.
A nuncupative , or oral, Will can only be valid in Indiana if the Testator was in imminent danger of death at the time he/she made the Will and then subsequently died. Like all other Wills, an oral Will must be witnessed by two disinterested witnesses, one of whom must reduce the Will to writing within 30 days. Moreover, a nuncupative Will can only dispose of personal property valued at $1000 or less (unless the Testator was on active duty in a time of war, in which case the limit is increased to $10,000).
Is My Father’s Death Bed Will Valid?
In the State of Indiana, a death bed Will can be valid. Therefore, the questions becomes whether the death bed Will your father created is valid. To contest the Will, you must allege, and ultimately prove, one of four grounds on which a Will can be declared invalid in Indiana, including:
- Improper Execution
- Lack of Testamentary Capacity
- Undue Influence
- Fraud
When the Will you are contesting is a death bed Will, the grounds used to contest the Will are usually capacity or undue influence. To prove lack of testamentary capacity, you prove that your father lacked the ability to understand the value or nature of the assets involved, failed to recognize who should receive those assets, and did not understand the ramifications of creating the Will. Simply being near death will not be sufficient to prove lack of capacity. Proving undue influence requires you to prove that your father was being controlled by another person or influenced by someone to the point that the decisions made in the Will were not his own.
Contact a Indianapolis Estate Planning Attorney
For more information, please join us for an upcoming FREE seminar. If you believe you have the grounds necessary to contest a Will and would like to discuss your legal options, contact an experienced Indianapolis estate planning attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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