The passing of a loved one is a very difficult time. There is a lot to do in addition to allowing yourself time to proceed through the process of grieving. However, the Indiana legislature doesn’t allow much time for something that can be very important; the filing of a will contest. In Indiana, the statute of limitations to file a will contest is 90 days after the admission of a will to probate. It is a very short statue of limitations and can leave a person who is considering filing a will contest, but sits on their hands, out of luck.
But, how does one know if there are possible grounds for a will contest in Indiana? The easiest way is to talk with an experienced attorney, but for purposes if this blog post, let’s start with some typical factual scenarios that Halcomb Singler, LLP, sees in representing both personal representatives and interested persons in will contest actions (these fact scenarios do not necessarily constitute grounds for a will contest, but are often indicators that further investigation is warranted):
- The adult child of a decedent (the person who passed away) is not receiving any funds under the will while their sibling(s) are receiving hundreds of thousands of dollars;
- The decedent was remarried. His or her will left all of his or her assets to a second spouse and no funds to any of his or her children;
- One relative or friend has been left all of the funds of an estate to the exclusion of other relatives. This person was close with the decedent as they got older, but was not a close relative;
- The decedent left all of his or her money to a charity and none to his or her family. This was never discussed with the family members and they are shocked;
- A new will was made very close to the decedent’s time of death and completely changed the distribution from previous wills, or the statutory succession.
If you are a person who has been surprised by a situation similar to those above, how do you know if it is worthwhile to speak to an attorney regarding the possibility of filing a will contest? What are the legal grounds for doing so in Indiana?
- 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.
- Testator Incapacity. You can also potentially attack a 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. Challenging capacity will typically require medical experts who either treated the decedent to testify or another physician who did not treat the decedent to declare, after examination of all of their relevant medical records, that the decedent lasted the capacity to make a will on the date of its execution. In addition, those who witnessed the signing of the will testify as to their opinion regarding capacity on the date of signing.
- Undue Influence. Undue influence sounds like exactly what it means legally. This legal theory acknowledges that as people age it is sometimes possible for those with negative intentions to take advantage of the situation for their own financial gain. One example of this might be a caregiver talking the decedent into leaving all of his or her funds to the caregiver, taking the decedent to the lawyer where the new will was prepared and paying for the new will. As you might imagine, these situations are very fact-sensitive and can be difficult to prove, but an experienced attorney can evaluate the facts and provide an assessment as to whether your situation may give rise to such a claim.
Now that you are aware of general fact patterns as well as the legal theories that are typically seen when grounds exist to file a will contest it is important that, if you believe you fall into one of those categories and you believe you have lost a significant amount of assets it is likely time to speak with an Indiana attorney with knowledge and experience in handling will contests. Since you may or may not be made aware that your 90 day statute of limitations to file a will contest has begun, it is extremely important to call right away.
For an appointment to speak with attorney Gregory Halcomb call our office at (317) 575-8222. Do not delay.