Understanding the lack of testamentary capacity in an Indiana Will Contest

When someone close to you dies, grief can be a difficult process. It is often accompanied by intense emotions such as anger, denial, and sadness. You may feel disbelief after reading the Last Will and Testament of a deceased. This can lead to questions about the mental state of your loved one at the time of the Will’s execution. You may be able to contest a Will if you suspect your loved one did not have the mental capacity to create a valid Will according to Indiana law. If you are considering challenging a Will, it’s best to consult an experienced probate lawyer. The fate of a Will after the Testator’s deathIn the meantime, however the Indianapolis attorneys of Frank and Kraft

can help you understand the lack of testamentary capability as it relates to an Indiana Will Contest.

The fate of a Will after the Testator’s passing

After a Testator (creator a Will) has passed away, family and loved ones usually search for a Last Will & Testament and other estate-planning documents If the decedent passed away intestate (without leaving a Will), Indiana’s intestate succession law is used to determine the distribution of estate assets to the legal heirs. If a Will can be located, it will be filed with the appropriate court along with a request to open probate to facilitate the administration of the estate. Probate is a legal process that oversees the administration of an estate. During probate the court validates a Will, and the terms are used to distribute assets to beneficiaries. Several probate steps are required before any assets can be distributed. Once the Will has been authenticated, it will direct how assets are divided at the end of probate. Once authenticated, the Will directs how the remaining assets are divided at the conclusion of probate.

Contesting a Will in Indiana

The Executor named in a Will is responsible for submitting it to the probate court in the county where the Testator lived at the time of death. Any “interested party” may now challenge the validity of the Will. Interested parties can include beneficiaries of the current will, beneficiaries of a previous Will, legal heirs or creditors. You should consult an experienced probate lawyer as soon as you decide to contest a Will. This is because you have three months from the date that the Will was accepted by the court as probate to begin the contest. It is not enough to simply dislike the terms of a Will or be surprised by the gifts given by the Testator. A Will in Indiana can be challenged for a number of reasons, including undue influence or fraud allegations, improper execution, revocation through a subsequent Will and technical issues. The court may invalidate a Will if the challenger can prove that the Testator was not mentally capable of creating the Will when it was executed. If no alternative valid Will exists, the estate will be distributed according to Indiana’s intestate succession laws.

Understanding Testamentary Capacity in Indiana

For a Will to be valid, the Testator must possess testamentary capacity. It is important to note that testamentary capacity is not the same as the legal capacity required to enter into a contract. In fact, it is possible for someone to lack the capacity to form a contract yet still possess the capacity needed to execute a valid Will.Indiana law asks several critical questions when determining if a Testator had the capacity necessary to create a valid Last Will and Testament, including:Did the Testator have sufficient strength of mind and memory to know the extent and value of his or her property?

Did the Testator understand the number and names of the persons who under normal circumstances would inherit from him or her?

• Did the Testator understand what those persons might deserve given their treatment of the Testator?
• Did the Testator have a sufficiently active memory to remember these facts long enough to have a Will prepared and signed?
• It is crucial to understand that testamentary capacity applies at the time the Will was created and executed. This is especially important if the Testator had Alzheimer’s disease or another form dementia. A diagnosis of Alzheimer’s does not automatically mean that the Testator lacks the capacity to make a Will. If the Testator experiences periods of clarity and periods of confusion, the Will may still be valid, if it is executed during a time of clarity. For more information, join us at an upcoming FREE seminar. Call
• Frank & Kraft

or

(317) 684-500

for an appointment if you have recently lost a family member and are unsure if they had testamentary capacity. Mr. Kraft’s primary areas of expertise are estate planning and administration. He also assists clients in Medicaid planning, federal, state and corporate taxation, real property and corporate law. Latest Posts by Paul A. Kraft Estate Planning Attorney (see all)