When a loved one passes away, a period of grieving and heightened emotions typically follows. At some point, the terms of the decedent’s Last Will and Testament may trigger yet another set of emotional responses if you are suspicious about the validity of the Will. The best way to decide if you have grounds to challenge a Will is to consult with an experienced probate attorney. In the meantime, however, the Indianapolis attorneys at Frank & Kraft discuss some factors to consider when deciding whether to contest an Indiana Will.
How Can a Will Be Invalidated in Indiana?
When family members and loved ones learn that the terms of a decedent’s Will are not favorable to them, they frequently have a strong negative reaction, especially if the terms come as a surprise. If you find yourself in such a position, you may think about challenging the Will. In Indiana, you cannot challenge (contest) a Will on the basis that you are unhappy with the terms of the Will. To succeed in an Indiana Will contest, you must prove that the Will is legally invalid. To do that, you must prove at least one of the following legal grounds on which a Will can be declared invalid:
- Lack of testamentary capacity
- Undue influence
- Fraud
- Improper execution
Things to Look for When Contemplating an Indiana Will Contest
If you decide to contest a Will in the State of Indiana, the burden is on you to prove that the Will is legally invalid because courts presume that a Will submitted for probate is valid. Moreover, the court will give significant deference to the Testator, assuming that they have the right to distribute their estate as they wish, placing a high burden on a contestant to rebut that presumption. Some things to look for if you have reason to believe that a Will is invalid include:
- Execution errors. All states, including Indiana, impose technical requirements on the execution of a Last Willand Testament. For example, the Will must be signed by the Testator and witnessed. If the Will does not appear to meet the basic requirements for a valid Will, the Will may be declared invalid.
- Recent changes to the Will. Someone suddenly deciding to execute a Will after learning they are close to death or facing a terminal illness is fairly common; however, changes to an existing Will that occurred close to the Testator’s death can be suspicious and may indicate undue influence or lack of testamentary capacity.
- Someone controlled the Testator’s finances and/or decision-making. If the Testator was under legal guardianship, or you have reason to believe that someone was unofficially controlling the Testator’s finances and/or decision-making, that could be a successful undue influence argument.
- The Testator had dementia or diminished capacity when the Will was executed. Proving that the Testator suffered from Alzheimer’s or dementia does not necessary invalidate a Will. It may, however, help you prove that the Testator lacked the required testamentary capacity to execute the Will which can lead to invalidating the Will.
- A person who helped draft the Will is a significant beneficiary. If the terms of the Will leave valuable assets, or a substantial portion of the estate, to anyone else who was directly involved in the creation of the Will, including the attorney who helped the Testator create the Will, you may have a winning undue influence argument.
- Leaving out a spouse or child without explanation. The Testator is under no legal obligation to leave anything to a spouse or child and may disinherit anyone; however, if they spouse/child is surprised by the disinheritance and no explanation is given it could be a sign that the Testator lacked capacity or was the victim of undue influence.
Do You Need Help Deciding Whether to Contest and Indiana Will?
For more information, please join us for an upcoming FREE seminar. If you need help deciding whether to contest an Indiana Will, contact the experienced Indianapolis probate attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
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