Probate and Trust Litigation

Question 1

What is the time limit for bringing a will contest?

Answer 1

Three (3) months from order admitting the will to probate.

Question 2

What are the technical requirements for a will contest?

Answer 2

1. Summons
2. Complaint
3. At least one proper party defendant
4. Filing fee
5. NOT filed under estate proceeding; has to be a new proceeding under PL.
6. Must be filed in same court where estate is pending.
7. Must be verified (under penalties of perjury that the foregoing representations are true). TR 11(b)

Question 3

How must affidavits be verified?

Answer 3

Short form jurat (same as verifying pleadings): under penalties of perjury that the foregoing representations are true. TR 11(b)
Does NOT need to be notarized.

Question 4

Who are the plaintiffs in a will contest?

Answer 4

By statute, persons who have standing: beneficiaries under a prior will or intestate heirs

Question 5

Who are the defendants in a will contest?

Answer 5

Named executor and all of beneficially interested persons under the will.

Question 6

What are the requirements for joining to the lawsuit?

Answer 6

As long as there was a timely-filed defendant, plaintiffs and defendants can join the lawsuit whether within the SOL or outside it.

Question 7

What are the statutory bases for a will contest?

Answer 7

(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.

Question 8

What must be in a pleading for a will contest?

Answer 8

Notice is sufficient and can be undeveloped b/c of limited time to file it.

However, allegations of fraud must be pled with particularity.

Question 9

What should always be pled in a will contest?

Answer 9

Lack of capacity.

The testator’s statements are often critical to the case. Can get around deadman’s statute hearsay. (Rule of Evidence 803). Will be admissible if targeted toward testamentary capacity.

If only use undue influence, you can’t get around hearsay. If lack of capacity not pleaded, won’t be able to get testator’s statements in.

Question 10

What happens if an earlier will is successfully probated?

Answer 10

This is a will contest (or objection to probate of will if get there b/f will probated).

A timely-filed will contest is only way to revoke probate.

Question 11

How to use a Pour-over will, rev trust, and will spread of record to frustrate a would-be plaintiff?

Answer 11

Include in pour-over will language that says: “If my rev trust is set aside as invalid for any reason, I incorporate by reference the dispositive terms of that trust into this will.”

Upon death, spread will of record with no notice required.

Wait to send 90-day trust letter until after three months will contest time has run.

Question 12

What is the time to file a trust contest?

Answer 12

The earlier of:

1. Ninety (90) days after the person receives from the trustee a copy of the trust certification and a notice informing the person of:
   A. the trust’s existence;
   B. the trustee’s name and address; and
   C. the time allowed for commencing the proceeding.
2. Three (3) years after the settlor’s death

Question 13

What is the cost bond will a will cost?

Answer 13

Not jurisdictional, but can get dismissed for failure to file; it’s statutory costs/filing fees.

Question 14

What is testamentary capacity in IN?

Answer 14

A person has testamentary capacity if, at the time of making a Will, he is in possession of sufficient strength of mind and memory to enable him

1) to know extent and value of his property,
2) to know the names of those who are the natural objects of his bounty,
3) to know their desserts with reference to their conduct toward and treatment of him, and
4) to retain these facts in mind long enough to have his Will prepared and executed.

Question 15

What is undue influence?

Answer 15

The undue influence sufficient to vitiate a Will must be such, as in some degree,

1) to destroy the free agency of the testator and
2) constrain him to do what is against his will [and would not have otherwise have done] but what he is unable to refuse or too weak to resist.

Question 16

What is fraud in a will contest?

Answer 16

1) Fraud in the INDUCEMENT is a false statement made to the testator to induce her to make a dispositive provision in will, and but for the false information, the disposition would not have been made.
2) Fraud in the EXECUTION is when someone puts a will in front of the testator and tells them it is something else. Misinformed of the document being signed.

Question 17

What are technical defects that could cause a will contest?

Answer 17

Failure to have 2 witnesses and sign in each other’s presence and the presence of the testator, as required by IN law.

Question 18

What is the publication requirement?

Answer 18

Contained in statement 1 of self-proving clause - need to know that the document being signed is the LW&T of the testator.

The publication can affirmed by the circumstances of the will.

Question 19

When is there a presumption of undue influence?

Answer 19

1) Matter of LAW b/c of the relationship of the parties (attorney/client; patient/doctor; parishioner/clergy, etc.)

It is NOT: POA; spouses; parent-child

2) Matter of FACT from the facts of the case: confidence is reposed by one party in another with resulting superiority and influence exercised by the other.
In such case, the Plaintiff must prove that either the dominant party dealt with superior of the matter derived from the fiduciary relationship or dealt from a position of overpowering influence as to the subordinate party
AND the result was an unfair advantage to the dominant party.

Question 20

Is an A-in-Fact that benefits from principal presumed undue influence?

Answer 20

No. IN law now says as long as the principal was acting (and not the A-in-F), no presumption of undue influence.

Question 21

What happens once the presumption of undue influence is raised?

Answer 21

It shifts the burden of production (evidence) to the dominant party to rebut the presumption with clear and convincing evidence.

Question 22

What is the evidentiary standard to disprove undue influence as a matter of LAW?

Answer 22

The fiduciary has to prove with clear and convincing evidence that the fiduciary acted in good faith, did not take advantage of a position of trust, and that the transaction was fair and equitable.

Question 23

What is the evidentiary standard to disprove undue influence as a matter of the FACTS of the case?

Answer 23

The dominant party has to prove with clear and convincing evidence that
no deception was practiced,
no undue influence was used, and
all was fair, open, voluntary, and well understood.

Question 24

Does the burden of proof shift in a will contest?

Answer 24

In a civil case, the party against whom a presumption is raised has the burden of producing evidence to rebut the presumption, but this rule does not shift the burden of persuasion (the burden of proof), which remains on the party who had it originally.

IN will contest statute says the “burden of proof” is always on the will contestor.

Question 25

What happens when there is an objection to probate of a will?

Answer 25

The clerk “impounds” the will for 30 days.

Question 26

When can a party object to a will?

Answer 26

Any time, even during lifetime of testator; the effect ist that when the will is offered for probate, the clerk is required to “impounds” the will for 30 days.

During that 30 day period, the objector may file a Complaint to Resist Probate.

If no complaint filed during that time, the will can proceed to be probated.

Question 27

What attorney fees are available in a will contest?

Answer 27

I.C. 29-1-10-14 provides that the fees of counsel
for both the plaintiff and the defendant may be paid from the estate.

However, Ct of App limited that in Stibbins to those
persons attempting to probate the next Will in proximity to the probated Will.

However, with the addition of I.C. 29-1-7-17.5 to permit challenges to MULTIPLE wills thus opening the door for a fee request pursuant to I.C. 29-1-7-17.5(b)

Question 28

What does the new I.C. 29-1-7-17.5 provide for a multiple will contest challenge?

Answer 28

The new statute establishes:
1) an evidentiary predicate for an “irreversible medical or psychiatric condition that predates the earliest will to be challenged; or
2) the wrong doing party “had a direct and active nexus with the preparation or execution process for each will to be challenged on the basis of undue influence.”
I.C. 29-1-7-17.5(a)(1) and (2)

Cremer asserts this is a “show cause” hearing and may not need a full factual evidence. A doctor record of incapacity enough?

Question 29

What is a claim for services?

Answer 29

This is a “quantum meruit” claim, whereby the claimant seeks to recover the reasonable value of his services.

In order to recover, the claimant must prove:

1) the reasonable value of the services rendered,
2) an intention to pay on the part of the decedent (can be either an express or implied contract), and
3) an expectation of compensation by the claimant.

The law holds that services b/n close family members are presumed gratuitous unless the claimant makes proof an express contract. These claims can be defeated by asking if the claimant loved the person and would have done these things w/out pay.

With express, the terms are spelled out (verbally or in writing); implied, the contract is inferred by the parties’ actions.

Question 30

What are the elements of a claim for breach of contract to devise?

Answer 30

The terms must include CONSIDERATION. Cannot just be a promise based on gratuitous or nice behavior.

Eg., a promise by the decedent to devise her estate to the claimant in exchange for continued personal services until her death is supported by consideration on both sides and may be enforceable.

Question 31

What is the outcome of the Ct. of App. decision in Markey?

Answer 31

Provided a more expansive definition of claim under I.C. 29-1-1-3(a)(2) to include “liabilities of a decedent which survive, whether arising in contract or in tort or
otherwise.”

*This includes claims such as breach of contract to devise, which could not have been enforceable during decedent’s life.

Question 32

When must creditors who are NOT ascertainable file their claims?

Answer 32

Within three (3) months of the first published notice to creditors, whether or not they receive actual notice.

Thus, important to file an affidavit as to ascertainable creditors and notice sent, so as to shift the burden of proof as to who is ascertainable.

Question 33

What is IN’s Deadman’s statute under IC. 34-45-2-4?

Answer 33

In suits or proceedings in which an Executor or Administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by the Executor or Administrator.

Under Section 4 an adverse party to the issue testifying against the estate as to matters involving the decedent during his lifetime is barred from testifying.

The application of the statute is limited to circumstances in which the decedent, if alive, could have refuted the testimony of a surviving party.

Question 34

Can a court veto a deadman’s statute hearsay objection?

Answer 34

Yes, under IC. 34-45-2-10(c). The court require any party to the suit to testify. Any abuse of discretion of this section is reviewable on appeal. The case law says the court properly exercises its discretion with the claimant makes a prima facia case through independent evidence. A court has never been reversed for allowing a claimant to testify.

Question 35

Is the deadman’s statute easy to waive?

Answer 35

Yes. Estate does so by calling the claimant as a witness. OR if the estate fails to object when the claimant presents his own testimony.

However, the mere taking of discovery does not waive the statute. But, if the party tenders discovery to the court for an evidentiary purpose, they waive the statute.

Question 36

What is IN’s Deadman’s statute under IC. 34-45-2-5?

Answer 36

in all suits by or against heirs or devisees founded on a
contract with or demand against the ancestor, to obtain title to, or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the
death of the ancestor.

Question 37

Which deadman’s statute applies to claims?

Answer 37

Both Sections 4 and 5.

Question 38

How did the Ct of App 2020 Bergal decision potentially expand deadman’s statute?

Answer 38

Ruled that deadman’s statute applies to a rev trust where the trust was “so central” to the estate plan that it was “akin to the estate itself.”

This leaves an open question as to whether other non-probate transfers may be subject to the deadman’s statute.

Question 39

Is the physician’s report admissible into evidence in a guardianship matter?

Answer 39

Only if both parties stipulate to it. Otherwise, it’s hearsay. Would need to have physician present testimony and subject to cross-examination, either in court or in depo.

Question 40

What are the remedies of a beneficiary against a trustee?

Answer 40

Perilous to be a trustee - if found in breach, the trustee has to pay the beneficiary’s fees AND the trustee’s fees.