Have you recently had a loved one pass away, and discovered that he or she left you no inheritance or less than you had been expecting? Do you have reason to believe that someone convinced your loved one to change the will to cut down on your inheritance – or exclude you altogether? Have you been thinking about challenging the will to get your fair share of the estate? If so, you certainly wouldn’t be the first person in history to contemplate such a thing. It’s important for you to know, though, that contesting a will can be far more difficult than most people imagine.
In fact, probate and estate planning attorneys routinely receive calls from individuals who want to pursue these types of challenges. In some instances, those heirs have legitimate concerns about their inheritances, and at least some reasonable grounds for issuing the challenge. In many other cases, however, they lose much of their interest once we explain the grounds they’d need to pursue their claims, and the overall costs that could be involved in a formal will contest.
The Grounds for A Challenge
One thing should be crystal clear: you cannot simply challenge a will because you think the terms are unfair. As a rule, testators are under few obligations when it comes to deciding who gets their wealth when they pass away. If your favorite uncle failed to leave you a bequest, that is not sufficient grounds to contest the will. Even if that uncle had indicated that your share of his estate would be larger than it turned out to be, you still might not have a case. No, to successfully contest a will, you must do so for one of these valid reasons:
- Improper Execution. All wills must be properly executed in accordance with Indiana law. That means that the testator must have been at least eighteen years old, and must have properly signed the document in the presence of witnesses. If you can demonstrate that the testator failed to properly execute the will, you may be able to successfully challenge the document and have it declared invalid. Mistakes in the execution of a will are among the most common reasons used in successful will contests.
- Testator Incapacity. You may also be able to challenge the will if you can provide evidence that the testator lacked the mental capacity necessary for creating and executing the will. That requires that you demonstrate that he or she didn’t 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.
As you might expect, that’s a high bar to meet – and most challenges based on incapacity fail. The defense against any such claim can be an easy one, since even evidence of dementia is often ignored by courts. In fact, the will’s defenders need only demonstrate that there were occasional moments of lucidity on the part of the testator. As a result, it can be extremely difficult to challenge a will based on testamentary capacity. Success often hinges on witnesses to the will-signing testifying that the decedent was not of a sound mind.
- Undue Influence. There are times when elderly people can fall under that sway of those closest to them. If another relative or friend is providing them with care, it is easy for that person to gradually gain more and more influence over the senior. When that influence is used to convince the testator to make specific decisions about his or her will, it can sometimes leave the door open for heirs to challenge the will based on undue influence.
It’s important to recognize that you need to prove that the influencer did more than just sweet-talk or cajole the testator into writing the will in a certain way. It usually requires that you prove that the influencer did something more nefarious – like isolating your loved one from her family, providing will instructions to the testator’s lawyer, or even paying for the will to be created. Again, this can be a difficult thing to prove.
- Fraudulent Procurement. Where fraud is concerned, you need to be able to demonstrate that someone tricked the testator into signing the will. Unfortunately, about the only way that you can prove that is to have the witnesses testify to that effect. Of course, when that happens, the will is likely to be ruled invalid due to improper signing rather than fraud.
Other Criteria for Challenging a Will
Even if you have legitimate grounds to challenge a loved one’s will, you still need to make sure that you will have the requisite standing to issue the challenge. Generally, there are two main criteria used to determine that a challenger has this standing:
- If you are already an heir but believe that your inheritance should have been greater – or have reason to believe that a prior will provided a more substantial inheritance, then you may have the standing you need.
- If you are not named as an heir but would stand to inherit under Indiana’s laws on intestate succession if the will were declared invalid, then you may have the standing you need.
In Indiana, however, that general rule also includes others with an interest in the estate. For example, creditors, spouses, and other interested persons may all file a challenge lawsuit in the appropriate probate court within three months from the day the court orders that probate begin.
Get Professional Assistance
Confused yet? There’s good reason to be. Contesting a will is never as easy as they make it look on the television screen, and only a very small percentage of contests meet a successful conclusion. At Frank & Kraft, Attorneys at Law, our team can help you to improve your chances of success by providing the sound counsel you need to navigate the complexities involved in any will challenge. To learn more about how we can help you to pursue your rightful inheritance claims, call today at (317) 684-1100, or contact us at our website.
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.