Term
| Who has standing to bring a will contest? |
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Definition
| Executor of any will, anyone who takes under intestacy and a beneficiary in any will. |
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Term
What is Objections to Probate? When file? Benefits? |
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Definition
File when believe that a will exists and should be contested. An objection to a will can be filed before death. One benefit to objections to probate is that the court will appoint a special administrator rather than rubber stamping the one in the will. This is imporatant b/c the executor controls the estate. |
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Term
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Definition
Three months, not 90 days. AFTER ORDER PROBATING THE WILL. This is different from when the estate is opened. Only when an estate is opened is there notice given; there is no notice other than public record for probating a will. So if see a will contest looming only probate, then wait a while to open estate. Other attorneys may have malpracticed. |
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Term
| Will Contests - Complaint Procedure |
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Definition
Must include both a filing fee and summons. DO NOT FILE under the estate b/c will not sustain a motion to dismiss. |
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Term
| Complaint - Substance, TR9 Implications |
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Definition
The text of the complaint should copy the language of IC 29-1-7-17. Typical reason is unsoundness of mind. TR 9 applies so the complaint should attach a copy of the will and plead fraud with particularity. If get motion to dismiss b/c not particular ask judge for discovery time and then amend the complaint. |
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Term
| Does D have to file an answer to a will contest complaint? |
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Definition
| No. This is the only trial rule that does not apply. |
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Term
| Do get a jury trial for a will contest? |
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Definition
| Yes so long as timely filed. |
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Term
| Will Contests BOP Fiduciary Relationship |
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Definition
Plaintiff must prove that person had a fiduciary relationship with decedent. - IF he shows this then, there is a presumption that the fiduciary acted under undue influence.
- To rebut this presumption, the fiduciary must show:
1) that he acted in GF and 2) did not take advantage of his position of trust and 3) that the benefits he and his family received under the will were fair and equitable. 3. If fiduciary rebuts this presumption then burden shifts to P to show that will invalid by a preponderance of the evidence. |
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Term
| What does Clear and Convincing Evidence Mean? |
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Definition
| Clear and Convincing evidence is a higher standard of proof than probable but less than reasonable doubt. Essentially, it means highly probable. |
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Term
| What are the elements of testamentary capacity? |
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Definition
1) know the extent and value of property 2) know the number and names of those who are the natural objets of her bounty 3) know what they should receive with reference to their conduct toward her. 4) retain these facts in mind long enough to have a will prepared and executed. |
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Term
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Definition
| B/c done in private need circumstantial evidence. Undue influence can best be seen by its results. |
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Term
| Does the influencer need to be present at the time of execution, in an undue influence claim? |
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Definition
| No, can still sustain a claim if there was previous influence that carried into the execution. |
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Term
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Definition
- Whether the beneficiaries of contested document are decedent's natural heirs.
- Whether distributions are just and reasonable and consonant with the state of family relations, b/c this reflects the ability to recall natural objects of her bounty.
- Strength Past relationship vs.u nnatural disposition of estate.
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Term
| Will Contests - Grounds To Bring |
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Definition
(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 |
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