One of the primary reasons for creating an estate plan is to avoid dying intestate (meaning without a Will or trust in place to distribute estate assets). What happens though, if a loved one who is on the verge of death makes a last-minute oral Will? Is that Will valid? An Indianapolis estate planning attorney at Frank & Kraft explains how Indiana treats an oral Will and whether you can challenge the validity of that Will.
The Last-Minute Will
Ideally, an estate plan should be created with 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 their estate plan because a Will can distribute all probate assets. Sometimes, however, the specter of an imminent death prompts a person who never took the time to create a Will to finally want to do so. The knowledge that death is near can also prompt someone to decide to change the terms of an existing Will which requires revoking a previously executed Will. A last-minute (often referred to as “death bed”) Will frequently disinherits someone who was anticipating an inheritance and/or gifts significant assets to someone who was previously not a beneficiary or not a significant beneficiary. Not surprisingly, this often leads to probate litigation.
Is an Oral Will Valid?
If a loved one attempted to create a last-minute oral Will that you wish to challenge, the first consideration is whether such a Will can ever be valid in Indiana. The simple answer is “yes.” The basic requirements for a valid Will in Indiana are that the Will must be in writing (except under very narrow circumstances discussed below) and witnessed by two disinterested witnesses. A handwritten Will can also be valid if it meets the other requirements.
An oral Will (legally referred to as a “nuncupative” 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).
Can I Challenge an Oral Will?
Since an oral Will can be valid in Indiana, the next question is whether the oral Will in question is valid. To contest any Will in Indiana you must allege, and ultimately prove, one of four grounds on which a Will can be declared invalid, including:
- Improper Execution
- Lack of Testamentary Capacity
- Undue Influence
- Fraud
When the Will you are contesting is an oral Will, the most common reason used to contest the Will is lack of testamentary capacity. To prove that a Testator lacked 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. Just proving that a Testator knew death was imminent does not, by itself, prove a lack of capacity. Improper Execution may also apply if two disinterested witnesses were not present at the time the Will was spoken.
Contact an Indianapolis Estate Planning Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about an oral Will in Indiana, contact an experienced Indianapolis estate planning attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
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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