The loss of a parent is not something for which you can ever truly prepare. If you recently lost your father, you are undoubtedly going through a period of grief and heightened emotions. Along with working through the emotional aftermath of your loss, you will also be faced with practical and legal issues relating to your father’s death. The administration of your father’s estate, for example, should begin shortly after his death. If your father left behind a Last Will and Testament, that process will begin when the Will is submitted for probate. What happens, however, if you are concerned about the validity of the Will submitted to the court? Can you contest your father’s Will? What considerations should you take into account when deciding to pursue a Will contest? A Carmel probate attorney at Frank & Kraft offers an overview of the requirements for contesting a Will in Indiana.
Do You Have Standing to Contest the Will?
One of the first considerations when discussing a Will contest is whether or not you have “standing” to initiate the litigation. Standing is the legal term that essentially means you have the legal right to bring the action in question. In the case of a Will contest, only “interested” persons have standing. An “interested” person could be a legal heir of the estate, meaning someone who stands to inherit if there was no Will, a beneficiary under the current Will or under a previous Will, or in some cases even a creditor of the estate. It is not only individuals who can contest a Will. A charity or corporation, for example, might even have standing to bring a Will contest. If the decedent is your father, you would be a legal heir to his estate, meaning you do have standing to contest the Will submitted for probate.
Do You Have Grounds for Contesting the Will?
Despite what you may have heard to the contrary, the truth is that you cannot contest a Will without a good, legal, reason to do so. Having standing only gives you the right to initiate a Will contest. You must also have legal grounds on which the Will could be invalidated to move forward with a Will contest. Being unhappy with the inheritance you are set to receive (or not receive) under the terms of the Will does not qualify as a good reason. In Indiana, you must allege, and ultimately prove, one of the following grounds that invalidates the Will:
- Improper Execution – for a Will to be valid in the State of Indiana, certain procedures must be followed at the time of execution. If those procedures were not followed, the Will could be invalid. In Indiana, the Testator must have been at least 18 years old, and must have properly signed the document in the presence of witnesses.
- Lack of Testamentary Capacity – this is a little more complicated than it sounds. To prove lack of testamentary capacity you must prove that the Testator 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.
- Undue Influence – this refers to a situation where the Testator was being controlled by another person or influenced by someone to the point that the decisions made in the Will were not their own.
- Fraud – in Indiana, this specifically refers to a situation wherein someone tricked the Testator into signing the Will. For example, if someone put a document in front of the Testator for signature but did not tell the Testator that the document was a Will.
What Happens If I Proceed with a Will Contest?
A Will contest is litigated in much the same way as other types of civil litigation. The Executor of the estate is responsible for defending the Will submitted for probate. Both sides will engage in discovery and likely try to negotiate a settlement in an effort to avoid a costly trial; however, if a settlement is not forthcoming the case will proceed to trial. One important aspect of a Will contest though is that the probate of the estate effectively grinds to a halt while the Will contest is litigated. This is necessary because the outcome of the Will contest determines how the estate is ultimately distributed. If you are successful, the Will is invalidated and the Indiana intestate succession laws will be used to distribute the estate assets unless another valid Will is located. If you are not successful, the Will is declared valid and the probate process resumes using the terms of that Will to distribute the estate assets.
Contact a Carmel Probate Attorney
For more information, please download our FREE estate planning worksheet. If you believe that you have a valid legal reason to contest your father’s Last Will and Testament, contact an experienced Carmel probate 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.
Latest posts by Paul A. Kraft, Estate Planning Attorney (see all)
- How Much Discretion Should Your Trustee Have? - January 16, 2019
- What You Don’t Know about Medicaid Could Hurt You - January 9, 2019
- What Can an Estate Plan Do for You? - January 2, 2019
