Contesting a Will in Indiana - Part I

Ten years before his death, Charles developed a cancerous brain tumor which was successfully treated with radiation.  Unfortunately, Charles developed delayed radiation encephalopathy (the swelling of the entire brain from fluid accumulation in the brain cells) from the treatment.  Charles' two adult children, in their thirties and leading busy lives with their own children, were unable to care for Dan when his health dramatically deteriorated.  Charles' sister offered to care for him in her home so that he would not need to be placed in a nursing home.  After Charles died, his children (with whom he had a loving relationship prior to his illness) learned that he had signed a Last Will and Testament shortly before his death, in which he disinherited them and left everything to his sister.

Charles' story involves a fairly-common theme in Will contest cases: the final caretaker for the "testator" (the author of the Will) inherits everything, while other loved ones (including children) are left with nothing or a nominal amount.  Other scenarios that commonly lead to Will contest cases are those involving a second or subsequent spouse who inherits instead of the deceased's children, a child who partners with a parent in the family business who inherits a disproportionately greater sum than other children, or a person alienated from family members who decides it would be better to leave everything to a charity.

In this four-part series, we will examine the key factors that are involved in the decision to contest the validity of a deceased person's Last Will and Testament.  In this article, we will take a brief look at the legal standard in Indiana that is used to measure a person's "testamentary capacity", namely the mental capacity that is necessary to create and sign a valid Will.  In subsequent articles we will take a look at the most common legal theories used to contest the validity of a Will:  unsoundness of mind (the testator lacked testamentary capacity), undue influence (the testator was of sound mind, but was in a dependent physical/mental state that resulted in his or her testamentary intent being improperly subverted), and defective execution (the legal requirements for signing a valid Will were not followed).

The legal standard for testamentary capacity in Indiana has been virtually the same since the 1800s:  Did the testator possess sufficient strength of mind and memory to know the extent and value of his or her property, the number and names of the persons who would in normal circumstances inherit from him or her, and what those persons might deserve given their conduct towards and treatment of the testator?  Finally, did the testator have sufficiently active memory to remember these facts long enough to have a Will prepared and signed?

In analyzing whether a Will contest action might succeed, it is important to know that Indiana law favors upholding the efforts of people to use an estate plan to dispose of their assets.  The legal standard for testamentary capacity takes this into account.  Thus, for example, a person who has been diagnosed with dementia or Alzheimer's disease has not necessarily lost testamentary capacity.  If the criteria outlined in the previous paragraph have been met, even a person diagnosed with a progressive, brain-altering disease could still have testamentary capacity when the Will was signed.

The decision about whether to file an action to contest a Will requires a careful, fact-sensitive analysis.  However, there is a very short period of time to make the decision:  Indiana law requires an action to contest a Will to be filed within three months after the court where the Will was filed has "probated" the Will (determined that it meets Indiana's requirements for signing a Will.  Therefore, if you are trying to decide whether to take action to contest a Will, you must act quickly following the death of the testator.  Several of the attorneys at Allen Wellman McNew Harvey, LLP, regularly practice in the area of Will contest actions.

Keywords: Last Will and Testament; Will Contest Action; Testamentary Capacity; Unsound Mind; Undue Influence; Lawsuit to Set Aside a Will.