Schedule Your Free Personal Injury Consultation.
(812) 359-7569Call For An Appointment To Discuss Your Needs.
In this article, you will discover:
Attorneys doing a new will for someone differ on whether the old will should be destroyed. The primary reason to retain prior wills might be to anticipate a potential challenge to a current will. If a court declares a will invalid, the most recent, valid prior will is the one admitted to probate. If destroyed, this would not be an option.
The goal of Indiana in the law of the probate of wills is to give effect to the decedent’s, or testator’s, intent. Practically every will states in its opening lines that it is the testator’s intent to revoke all prior wills and codicils (written amendments attached to a will). Assuming you were of sound mind when your will was executed, your latest will is believed to be the one reflecting your true intent.
There are cases in which the most recent will could be contested and deemed invalid due to incapacity. A common basis for finding a will invalid is that a testator lacked testamentary capacity to execute a valid will due to fraud, duress, or undue influence.
Will contests arise when there is a conflict among the surviving beneficiaries or other parties, each one having a different contention on whether a particular will is valid. Will contests are ultimately resolved in an evidentiary hearing where the judge must decide which will is valid because only one can be. Generally, it’s the most recent one executed when the testator was of sound mind and followed the legal processes for a valid will in Indiana.
A will is revoked if it’s ripped up, destroyed, defaced, or marked as revoked on its face. There is case law that addresses when a court should presume someone intended to revoke a will. Otherwise, you can’t tell from the face of a will if it was the most recent or if it’s been superseded or revoked by another more recent will.
When a will is presented, it’s presumed to be valid unless someone has reason to believe it was altered later, or the testator lacked the proper capacity when it was made. You can ask the heirs or prior attorneys, or you can check the statewide listserv to see if a will is the most current. Generally, if no one’s able to produce a more recent will, then it effectively doesn’t exist.
The first factor is the date of the will. There is a presumption that the most recently dated will is intended to revoke any prior will. In effect, it’s like ripping up the preceding will or defacing it.
There are arguments you can offer to prove that the most recent will isn’t the valid one. Reasons include technical deficiencies, such as failing to sign or date the will or failure to have two witnesses to the signing. There could also be evidence presented that the signature of the decedent is fraudulent. Another technical basis would be the physical defacing of the will, which confuses the question of whether the testator intended to make a will.
Another reason to contest a will is the mental capacity of the testator. There is a presumption that people executing a will had sufficient mental capacity to do so. The burden of proving otherwise is on the person bringing the challenge.
Challenges to the mental capacity of the testator are challenges to the notion that the person understood the nature of gifts made under the will and whether they did so as a knowing and voluntary act. These may include an allegation that the will was signed as the result of duress, undue influence, or fraud. These conditions can call into question whether the person voluntarily or willingly signed the will.
When it comes to proving mental capacity, the bar is actually low. Generally, you only need to show that the testator understood: (a) the purpose and effect of their will; (b) the nature and extent of their assets; (c) who their natural heirs are; and (d) what those heirs might otherwise deserve, or expect, to inherit.
Attorneys will quiz the testator about the extent and scope of their assets to ensure they understand they’re signing a will to divide up their property upon their death to “the natural objects of their bounty,” specifically their heirs. Finally, they need to understand how the will divides the property and be able to recite that in front of the witnesses as their intention.
Even if testamentary capacity is shown, there can still be cases where someone is under undue influence. In other words, the testator has the requisite mental capacity, but they’re not carrying out their intent; they’re responding to someone who’s taken advantage of them. Proving this is the obligation of the person bringing the challenge.
Attorney Thomas Scifres is a skilled lawyer based in Salem, Indiana, who has helped clients like you navigate the intricacies of probate law. With more than three decades of experience, he is prepared to assist you with validating or contesting wills so that the deceased's wishes are honored and beneficiaries and heirs receive what they're entitled to.
Still have questions? Ready to get started? Contact Thomas E. Scifres, PC, today to schedule an initial consultation.
If there are multiple wills, the conclusion is that the testator was determining that the prior no longer provided their current desire for the distribution of their assets. So, there’s a quest to find the most recent, valid will to determine which conveys the testator’s final, testamentary intent. If certain heirs or beneficiaries challenge the validity of the most recent will, there will need to be a fact-finding hearing to determine if sufficient capacity existed to support that will. If not, then courts will go back to the most recent will prior to that one.
If there is no valid will, the state of Indiana does not take all of your assets, contrary to what many people think. Instead, there is something known as the statute of intestate succession. “Intestate” means you died without a will, and “succession” means to pass. Intestate succession is a statute that defines how your assets will pass if you die without a will.
Intestate succession doesn’t specify that certain types of assets go to certain people. Instead, assets are distributed based on the relationship of the heir to the deceased. Your spouse, with whom you had children, receives 50% of the estate; your children receive the remaining 50%. If your spouse is a second or third spouse with whom you had no children, then their percentage of the estate is lower.
Every state has intestate succession laws. These laws are similar from state to state, but Indiana, like every other state, has its own rules. Intestate succession can sometimes cause problems. For instance, if your children don’t agree to give up their share, your surviving spouse might not have enough to live on, especially if they were relying on all the shared assets.
That’s why having a will is advisable. A will lets you control who gets what and can help ensure your spouse is financially secure. Without one, Indiana law decides for you, and your children could legally end up with half of your property, whether you intended them to or not.
Gather all the wills and schedule a meeting with an attorney who handles estates. This may or may not be the attorney who prepared the wills. Generally, it’s simple to determine by the date which one is the most recent and valid. If there is a question as to the validity of the most recent will, then the attorney who prepared it is likely to be a witness and will not be able to represent any party on either side of that debate.
I had one recently where there were four children, but one of the children had been estranged from the family for 20 to 30 years and had been written out of the will. I didn’t write the original will. This estate came to me from another law firm.
The law firm had an unsigned will in the form of a Microsoft Word file. They didn’t have a signed copy of the will itself. Nobody could find the original or a signed copy.
All we knew was that this child was estranged and had been written out of the will. However, no one could find the signed original will (or even a copy of the signed will). Without a signed will, there was the presumption that it had been destroyed, and the law of intestate succession would give the child an equal share as the other children. The estranged child retained an attorney, and we reached a settlement that gave him less than the quarter share his siblings received. We did that because if the unsigned will were upheld, which it probably shouldn’t have been, he would get nothing, and the three children would get everything. If it were not upheld, he would get the same share the other kids got. They settled on something in between those two outcomes.
Later, when the daughter who received the pickup truck drove it home and cleaned it out, she found an unopened envelope under the passenger seat that had been there for many years. She opened it up, and it was the lost will. This resulted in litigation over the conflicting terms of the original will and the settlement the kids had reached. Ultimately, a new settlement was reached.
We never know what a court’s going to do. You have to evaluate the facts, consider the cost of litigation, and do your best to reach a logical resolution. In that case, we were able to settle, and everybody walked away reasonably happy – knowing that had it gone to trial, one side would have gotten what they wanted, and the other would have lost.
For more information on multiple wills in an Indiana probate estate, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (812) 359-7569 today.
Attorney Thomas Scifres is a skilled lawyer based in Salem, Indiana, who has helped clients like you navigate the intricacies of probate law. With more than three decades of experience, he is prepared to assist you with validating or contesting wills so that the deceased's wishes are honored and beneficiaries and heirs receive what they're entitled to.
Still have questions? Ready to get started? Contact Thomas E. Scifres, PC, today to schedule an initial consultation.
