Law Tips: 5 Tips to Discourage Probate Litigation

Law Tips gets straight to the point this week with succinct and valuable reminders for estate practitioners. Our contributor, John Cremer, Cremer & Cremer, Indianapolis, is a faculty member on the faithfully popular CLE program, “120 Hot Tips in Estate and Trust Practice.”

John offers 5 Tips to Discourage Probate Litigation 

1. Get A Geriatric Assessment.

If your client has diminished capacity or is elderly, has large and complex assets, and wants to set up a high risk, controversial estate plan, get a clinical geriatric assessment with specific instruction to the clinician, preferably a neurologist, as to the legal standard for the capacity in question.

2. Select Witnesses Who Are Acquainted With The Testator/Settlor.

If the lawyer brings in witnesses who are not acquainted with the testator, or otherwise fails to establish capacity in the presence of the witnesses, a self proving clause will not hold up if the witnesses cannot lay a factual foundation for their opinions on soundness.

3. Gifting As A Means To Impeach The Plaintiff.

Under certain circumstances, it may be advisable to make gifts by check to potential contestors proximate to the Will/Trust execution. The negotiation of the check is a form of acknowledgment that the donor had capacity to make the gift.

4. Build A Will/Trust Wall.

The will contest statute contemplates a challenge to only the probated will or a will offered for probate.   A series of wills over time presents a significant barrier to successful litigation.

5. Always Probate The Will.

Even if no administration is required and particularly under the circumstances of a fully funded revocable trust, spreading the Will of record starts the will contest limitation period, even without notice.  Incorporation of the trust terms by reference in the Will can seal the deal for the defense.

I hope these pointers were helpful toward navigating successfully as you advise your probate clients.  Thanks again to John Cremer for generously sharing his expertise on Law Tips.


Our Law Tips Faculty Member:
John A. Cremer, Cremer & Cremer, Indianapolis, Indiana, was admitted to the Indiana Bar in 1989.  He practices in Trust and Estate Litigation; Estate Planning; Estate Administration, Appellate Practice. For the past seven years, he has been the contributing editor to Henry’s Indiana Probate Law and Practice.  John Co-chaired Probate Litigation ICLEF Seminars, in October 1994, May 2000, December 2004, May 2009 and  November 2011.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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