Estate Planning/Probate

    Will Challenge

    How to Challenge an Indiana Will.

    First thing you must decide is if you have standing to even challenge the Will. The law is not written so anyone can challenge a Will. For instance, you cannot challenge your ex-wife’s parents will just because you don’t want her to get anything. In addition, you cannot contest a will just because your portion was smaller than your siblings.

    Indiana Probate laws only allow “interested persons” to challenge a will. If you are an interested person you still must have a valid legal reason to initiate the challenge.

    What is the definition of a interested persons who can challenge a will in Indiana. This usually includes spouses, children, heirs, devisees, creditors, or anyone with a property right, or claim against, the estate. These people are also usually named in a Will, (Beneficiary) or in the absence of a Will would be in line to inherit or if the Will was deemed to be invalid. (Heir)

    To challenge a will a “formal” probate petition needs to be filed. Once the petition is filed, there is a particular number of days in which you must file your objection. It is critically important to have an attorney review any affidavits of objection that are filed, as they can be easily challenged.
    Duepner Law can help you assess your case to determine the validity of the will and what rights you may have.

    Common Reasons for Will Challenges

    Undue Influence:

    Wills are often times created or changed under the principle of undue influence.

    “Undue influence” refers to a process by which a person overwhelms the will of another in order to secure benefits for himself or herself, his or her spouse or his or her children. It can be minimal or outright obvious. Example: a man on his death bed that is incapacitated and highly medicated changes his will to give everything to his neighbor one day before his death. This type of action would certainly spark interest as to the timing and potential undue influence. There are a few ways to prove undue influence.

    • There is a caregiver relationship and the caregiver uses that power to overcome the will of the person to make decisions.
    • A person may attempt to alienate the victim from other family members or friends, and then accuses those family members and/or friends of having abandoned the victim.

    Testamentary Capacity; The person creating the Will must be of sound mind. Certain principles have been established to help understand the concept of sound mind.

    • Does the testator understand that they are creating a will, what that means, and the effect of that will have on certain individuals?
    • Does the testator know the nature and value of the assets in their estate?
    • Does the testator understand the consequences of excluding or disinheriting certain people under their will? and,
    • Does the testator suffer from any mental disorders which may influence their creation of the Will and its terms?

    Lack of Valid Execution

    A Will in Indiana must be signed by the testator in the presence of two disinterested witnesses and a notary. Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness. It is the challengers burden to overcome the presumption that the Will was signed validly.

    Forged or Fraudulent Wills

    This goes without much explanation. If you believe someone else has signed a will on someone else’s behalf you may have a valid claim to challenge the Will. In addition if some makes lies to the testator to get them to include or disinherit certain individuals in the estate, this will would be created fraudulently. The testator must not be lead to believe certain untrue facts when creating a will.

    Negligent preparation or errors

    In rare cases, wills can contain clerical errors that will go against the obvious intentions of the testator. This could be the basis for a professional malpractice claim or if the will simply contains unclear or ambiguous terms it could be brought before the court for clarification.

    Having an experienced attorney on your side.

    Challenging a will in Indiana is never cut and dry. Many facts need reviewed an analyzed to determine your chances of a successful will contest. We can help you make this determination and also plan the proper legal strategy to help secure your interests. We handle Probate cases and will challenges throughout central Indiana. Call today to schedule a consultation with a Hamilton County Attorney at 317-450-0044.