Signs to Look for When You Suspect a Will Is Invalid
When a loved one passes away, a period of grieving and heightened emotions typically follows. At some point, the terms of the decedent’s Last Will and Testament may trigger yet another set of emotional responses if you are suspicious about the validity of the Will. The best way to decide if you have grounds to challenge a Will is to consult with an experienced probate attorney. In the meantime, the Indianapolis probate attorneys at Frank & Kraft offer some signs to look for if you suspect that a Will is invalid.
How Can a Will Be Invalid?
If the terms of a decedent’s Will are not favorable to them or come as a surprise, family members and close loved ones may have a strong negative reaction. That may trigger talk of contesting (challenging) the Will; however, a Will cannot successfully be contested on the basis that an heir or beneficiary was surprised by the terms or unhappy with the terms of the Will. To succeed in a Will contest in the State of Indiana, you must prove that the Will is invalid. To do that, you must prove at least one of the following legal grounds on which a Will can be declared invalid:
- Lack of testamentary capacity
- Undue influence
- Fraud
- Improper execution
Signs that a Will Is Invalid
If you decide to contest a Will, the burden is on you to prove the Will invalid. Courts typically start with the presumption that a Will submitted for probate is valid and give great deference to a Testator to distribute his/her estate as he/she saw fit. That places a high burden on a contestant to provide sufficient evidence to rebut that presumption. Some common signs to look for if you have reason to believe that a Will is invalid include:
- Execution errors. All states impose technical requirements for a Will to be considered valid. For example, the Will must be signed by the Testator and witnessed. If the Will does not appear to meet the basic requirements for a valid Will, that is a sign that could indicate the Will is invalid.
- Recent changes to the Will. While it is not unusual for someone who does not have a Will to decide to execute one after learning they are close to death or facing a terminal illness, changes to an existing Will that occurred close to the Testator’s death can be suspect. They bring into question the Testator’s mental state as well as the possibility of undue influence when the Testator was particularly vulnerable.
- Someone had control over the Testator’s finances and/or decisions. If the Testator was under a legal guardianship, or you have reason to believe that someone was unofficially controlling the Testator’s finances and/or making decisions for him/her, it could provide the basis for a claim of undue influence.
- The Testator had dementia or diminished capacity when the Will was executed. Even an official diagnosis of Alzheimer’s or dementia at the time a Will was executed does not, by itself, invalidate a Will. It can, however, lead to a successful assertion that the Testator lacked necessary capacity to execute the Will and, therefore, invalidate the Will.
- A person who helped draft the Will is a significant beneficiary. If the terms of the Will leave significant assets, or a substantial portion of the estate, to the attorney who drafted the Will or to anyone else who was directly involved in the creation of the Will, consider that a red flag. It may indicate undue influence on the Testator at the time the Will was executed.
- Leaving out a spouse or child without explanation. A Testator has the legal right to disinherit or leave out anyone, including a spouse or child, when creating a Will. Doing so, however, without addressing the missing heir and/or providing an explanation can be suspicious and may indicate lack of mental capacity or undue influence.
Contact Indianapolis Probate Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about challenging a Will, contact the experienced Indianapolis probate attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law firms in Indiana in the area of estate planning as well as business and tax planning.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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