What happens when a prospective heir, devisee or legatee is disappointed to learn that they’ve been disinherited, or have been left a less than what they feel they deserve under a Last Will and Testament? This situation can often give rise to a will contest. In Indiana, a will contest is a special type of lawsuit with specific and unique requirements, as set forth in Indiana’s probate code.
In Indiana, any interested person (for purposes of the probate code, “interested persons” means heirs, devisees, spouses, creditors, or any others having a property What happens when a prospective heir, devisee or legatee is disappointed to learn that they’ve been disinherited, or has been left less than what they feel they deserve under a Last Will and Testament? This situation can often give rise to a will contest. In Indiana, a will contest is a special type of lawsuit with specific and unique requirements, as set forth in Indiana’s probate code.
In Indiana, any interested person (for purposes of the probate code, “interested persons” means heirs, devisees, spouses, creditors, or any others having a property right in or claim against the estate of a decedent being administered) may contest the validity of any will in the court having jurisdiction over the probate of the will within three (3) months after the date of the order admitting the will to probate by filing in the court the person's allegations in writing verified by affidavit, setting forth:
(1) the unsoundness of mind of the testator;
(2) the undue execution of the will;
(3) that the will was executed under duress or was obtained by fraud; or
(4) any other valid objection to the will's validity or the probate of the will.
(1) the unsoundness of mind of the testator;
(2) the undue execution of the will;
(3) that the will was executed under duress or was obtained by fraud; or
(4) any other valid objection to the will's validity or the probate of the will.
Indiana’s probate code requires that the executor and all other persons beneficially interested in the will shall be made defendants to the action, and notice must be served upon those defendants in the same manner as required by the Indiana Rules of Trial Procedure. In addition, the contesting party must also serve a copy of the complaint on the counsel of record, if any, for the personal representative.
One unique requirement of will contests, is that at the time of filing a verified complaint to contest the will, the plaintiff in the action, or some other person on the plaintiff's behalf, must file a bond with sufficient sureties in an amount approved by the court, conditioned for the due prosecution of the proceedings and for the payment of all costs if in the proceedings judgment is rendered against the plaintiff. This is very different from the filing of most other lawsuits.
Once the will contest is properly filed, the contesting party bears the burden of proof to show the existence of one of the following reasons that the probate of the will should be revoked and such will set aside in favor of a previous will or intestate succession.
(1) the unsoundness of mind of the testator;
(2) the undue execution of the will;
(3) that the will was executed under duress or was obtained by fraud; or
(4) any other valid objection to the will's validity or the probate of the will.
(1) the unsoundness of mind of the testator;
(2) the undue execution of the will;
(3) that the will was executed under duress or was obtained by fraud; or
(4) any other valid objection to the will's validity or the probate of the will.
Obviously the grounds for which a will can be set aside are each fact sensitive determinations. Accordingly, building a case to either prove or disprove the existence of any of these grounds typically involves reliance on discovery requests, medical records, deposition testimony, etc. At Halcomb Singler, we are experienced in helping clients obtain the information and evidence they will need to vigorously pursue or defend will contest suits.
If you have questions about potentially contesting a will, or if you are administering a will that may be subject to a will contest, you should consult with counsel immediately, as the time limits and procedural requirements are strict and difficult to navigate. At Halcomb Singler we are happy to consult with potential clients regarding probate litigation matters, and can utilize our experience to help clients navigate those dangerous waters, helping them to obtain a just resolution through pragmatic advice. If you have questions, please contact us at (317) 575-8222 to schedule an appointment, or check out our website for additional info at www.halcombsingler.com.
