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Contesting A Will in Indiana - Part 1

Ten years before his death, Gary developed a cancerous brain tumor that was successfully treated with radiation.  Unfortunately, Gary developed delayed radiaton encephalopathy (swelling of the brain) from the treatment.  Gary's two children, both in their thirties and leading active lives with their children, were unable to care for Gary when his health deteriorated.  Gary's sister took him into her home so that he would not have to live in a nursing home.  After Gary died, his children learned that he had purportedly signed a new Last Will and Testament after he began living with his sister.  With that Will, Gary disinherited his children.

Gary's story involves a fairly-common theme in will contest cases:  the final caretaker for the "testator" (the author of the will) inherits everything to the exclusion of other family members.  Other common scenarios include cases involving a second or subsequent spouse who inherits instead of the deceased spouse's children, a child who partners with a parent in the family business who inherits far more than his or her siblings, or a person alienated from family members who decides to leave everything to a friend.

In this four-part series, we will examine the factors that are involved in the decision to contest a deceased person's Last Will and Testament.  In this entry, we will examine the legal standard in Indiana that is used to determine whether a person has "testamentary capacity" (the mental capacity necessary to create a valid will).  In later entries we will 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 possessed testamentary capacity but a person upon whom he or she was dependent took advantage of that dependency), 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 have 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 under normal circumstances would inherit from him or her, and what those persons might deserve given their treatment of the testator?  Finally, did the testator have a 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 generally favors upholding the efforts of people to direct the distribution of their assets upon death through the use of a will (or other estate planning mechanisms).  The standard for testamentary capacity takes this into account.  For example, a person who has been diagnosed with dementia or Alzeheimer's disease has not necessarily lost testamentary capacity.  If the criteria for establishing testamentary capacity have been satisifed, a person diagnosed wtih a progressive, brain-altering disease could still have testamentary capacity in the early stages of that disease.

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 that decision.  Indiana law requires an action to contest a will to be filed within three months of the date the court where the will was filed has issued an order determining the will to have been properly signed.  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.

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