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A “no-contest clause” is a provision in a Will that results in a beneficiary forfeiting any gifts made in a decedent’s Will if the beneficiary challenges the validity of the Will. In other words, if a Will includes a no-contest clause and the provisions of a Will entitled you to a $100,000 gift, you give up that inheritance if you challenge the Will. Indiana law does allow for the enforcement of a no-contest clause but there is a “good cause” exemption. This means that the no-contest clause will not be enforced if you can convince the court that you had good cause to challenge the validity of the Will.
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Undue influence is typically based on an imbalance of power between the Testator and the “influencer.” To succeed in a claim of undue influence you will need to prove that the Testator made decisions in his/her Will that would not have been made but for the influence of the “influencer.” For example, if your mother had a caregiver in her final months who intentionally isolated your mother, provided round the clock care, and discouraged interaction with the outside world you might be able to win on an undue influence argument if your mother dramatically changed her Will in favor of the caregiver right before her death.
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Alleging lack of testamentary capacity effectively claims that the Testator did not have the requisite mental capacity at the time the Will was executed. To successfully contest a Will based on lack of testamentary capacity you will need to prove that the Testator lacked one of the elements required to have testamentary capacity. Those elements are:
- The Testator understood the extent and value of his or her property.
- The Testator knew the names of the persons who, under normal circumstances, would inherit from the estate. These are the Testator’s legal heirs.
- The Testator understood what his/her natural heirs might deserve given their treatment of the Testator.
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Yes. As a general rule, a Testator can dispose of his/her property anyway he/she sees fit. Unless you are the Testator’s spouse, you have no legal right to receive anything from the estate if the Testator executed a valid Will disposing of all estate assets. In other words, being unhappy with the terms of a Will does not provide the legal justification needed to contest the Will. Instead, you must allege one of the available legal grounds on which a Will can be invalidated in Indiana, including lack of testamentary capacity, undue influence, duress, fraud, and improper execution. If you are the Testator’s spouse, you have a legal right to “take against the Will” which does not require you to contest the Will.
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Yes. If you are contemplating a Will contest, you should consult with an attorney as soon as possible because Indiana law only allows three months from the date the Order is entered admitting the Will for probate to file a formal challenge to the validity of the Will.
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To initiate a Will contest in Indiana you must have “standing.” The term “standing” in legal terms means the right to initiate or join a legal action, in this case, challenging a Will. Indiana law allows any “interested person” to contest a Will. An “interested” person includes beneficiaries under the Will submitted for probate, legal heirs of the estate under the Indiana intestate succession rules, beneficiaries under a previous Will executed by the Testator, and possibly creditors of the estate.
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Although there is no sure fire way to prevent someone from contesting your Will, there are things you can do to discourage a Will contest. Including a Letter of Instruction in your estate plan that explains why you made gifts that are likely to be controversial is one thing you can do. You may also decide to include a “no contest” clause in your Will. A no contest provision effectively disinherits anyone who tries to contest your Will.
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Once I Will contest is initiated the probate process effectively slows to a crawl because the validity of the Will must be determined before moving forward. That requires litigating the issue of the Will’s validity. If the contestant is successful, the Will is invalidated, and the court will look for another valid Will or move forward using the state intestate succession laws. If the contestant is not successful, the Will is validated and used to distribute the estate.
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- For a Will contest to move forward in court the contestant must allege (and ultimately prove to win) one of the limited legal grounds on which a Will can be invalidated in Indiana, including:
- Improper Execution. Certain procedures must be followed at the time of execution of a Will for it to be valid. 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. Alleges 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. Alleges that 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.
- This refers to someone tricking the Testator into signing the Will.
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Generally, Indiana law requires a Will contest to be filed within three months of the date the probate court issues an order admitting the Will for probate.
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Moreover, like many states, Indiana allows a spouse to “take against the Will.” With some exceptions, this entitles a spouse to one-half of the net personal and real estate unless the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent and the decedent left surviving children or descendants. In that case, a surviving spouse is still entitled to take against the Will; however, he/she is entitled to less than half of the estate.
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To contest a Will a contestant must have “standing,” meaning the legal right to bring the Will contest. Only an “interested” person (or entity) has standing in a Will contest. That typically means a legal heir of the estate, a beneficiary under the current Will or under a previous Will, or in some cases even a creditor of the estate.
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Shortly after learning of your death, the person you appointed as Executor in your Will should initiate the probate of your estate. Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed.
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- A Will is a legal document that is used to express the Testator’s (creator’s) wishes regarding his/her estate assets and what should be done with them upon the Testator’s death. Gifts made in a Will may be general or specific. Along with making gifts of estate assets, a Will offers the parent of a minor child the only official opportunity available to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed. Your Last Will and Testament also allows you to decide who will oversee the administration of your estate when you appoint an Executor.
Contact Us
If you have additional questions, contact an experienced Indianapolis, Indiana elder law attorney at Frank & Kraft. by calling (317) 684-1100 to schedule your appointment today.
