When people create their estate plan, it is a common assumption, if not an expectation, that the directives contained in their will or trust will be followed and such is their ultimate desire as far as the transfer of their assets. However, not always what you have written turns out to be what ends up being what your will or trust dictates. Enter litigation in the form of will and trust contests.

We have been in many will and trust contests and can say the litigation is what one could describe as trench warfare in that both sides are entrenched in their positions, willing to fight to the last man (or dollar in these cases), long and drawn out over years, and easily costs each side $100,000-plus in litigation expenses. And, there is generally an extreme amount of money riding on the outcome. If the family farm is part of the assets being fought over, then you’ve got nuclear war litigation. Further, it is hard to think of any other litigation that destroys a family’s fabric more than a will or trust contest.

If your will or trust is knocked out via the litigation, then your prior will or trust takes its place. Not so good if your prior will was 40 years ago when your children were minors. If there is not a prior will or trust to revert back to, then the assets are dispersed via the state statute for cases when a person dies without a will. To say the least, not only does this lead to results that differ wildly from what the decedent desired, but all the hard work done to have a succession plan to keep a farm in a family is for naught.

Conceivably every state has the ability for a person to contest a will or trust. However, a person generally must have something called “standing” to bring a contest action. Standing, under the law, requires a sufficient connection to or harm from the law or action challenged to support that party’s participation in the case. For instance, suppose you wanted to challenge the will of one of your neighbors who passes away. Unless you are an heir to the will, potential heir at law if the person did not have a will or have some personal connection that would give you some sort of interest in the person’s property, you would have no standing to bring a challenge. On the other hand, if you are named in the will, and don’t like what you are receiving, or are a child excluded from the will, but would be an heir at law if the person did not have a will, or have other interest that qualifies, you have standing to bring a challenge.

Once a person is determined to have standing, then the case turns on why the person claims the will or trust is not valid. Generally, a claim is brought alleging that the decedent was influenced, pressured, tricked, or not of sound mind when making out their will or trust. One obvious problem in defending a will or trust contest is that the main witness, the person who made the will, is dead. They are not there to testify why they wrote the will the way they did, why they left someone out, why someone got most of the farm, etc. The side attacking the will or trust will dredge up medical records that could show an early onset of dementia at the time of making the will or trust and use that to show unsoundness of mind. Or they will try to show that someone influenced the person making the will. Especially if the will is changed a short time prior to the decedent’s death.

Over the years, there is one phrase people have said many times over the years and that is “my children won’t fight over my stuff.” These folks are politely reminded that a) they being alive generally keeps people in line, which changes after they pass away, b) never underestimate the ability of in-laws to stir up a child to contest their parents’ will/trust, and c) with the amount of money, especially with farm ground, there are more and more reasons for people to contest. It is important to remember that it only takes ONE disgruntled heir to pull your entire estate into expensive litigation that lasts years.

Over time, states began allowing for “no contest clauses” to be put into wills and trusts. “No contest” is a bit of a misnomer because the clauses generally do not stop a contest from being brought. Rather, the clauses generally say if you bring a contest and lose, you get nothing that the will provides you receive. For the person who has been excluded from the will, there is not much risk since they are not receiving anyway. Up until the past few years, no-contest clauses were specifically unenforceable in only two states, Florida and Indiana. Indiana changed its law two years ago to allow no contest clauses, but the law states that a no contest clauses does not apply to “an action brought by a beneficiary if good cause is found by a court.”

If the road to hell was paved with good intentions, as the saying goes, then a good bet in future years is we will see roads to will/trust litigation paved with claims of “good cause” and good intentions. Let’s face it, everyone contesting a will or trust will claim “good cause,” so it will be interesting to see how Indiana Courts determine what and what is not “good cause.” The takeaway is that one should not feel entirely warm and fuzzy if their estate documents contain a no-contest clause because it won’t stop the litigation from starting.

The question we are often asked is can a person head off a will or trust contest? The answer is “yes,” via “pre-mortem validation” or “ante-mortem probate” statutes. The first states to go this route were North Dakota (1977), Ohio (1978), and Arkansas (1979). Alaska (2010) followed suit, as did New Hampshire (2014), Delaware (2015), and North Carolina (2015). Indiana joined these states on July 1, 2023. Some call these laws “put up or lawyer up” laws. Meaning, a person can force a disgruntled heir to either put up with what has been written or go lawyer up and contest the will/trust while the person is alive.

Like other states, Indiana’s new law in this area is rather simple. The person or their agent (i.e. attorney most times) can send a copy of the will or trust to any person named in the documents, any heir that would inherit if the person died and did not have a will, or any people that the person wants to bar from contesting the will or trust. Along with a copy of the will or trust, the person needs to provide the names and addresses of all the people the notice was sent to. From there, the person has 90 days to “put up or lawyer up.” Meaning, if they do nothing, then after 90 days they are forever barred from challenging the will. Obviously, in these instances, the person making the will or trust is alive and can testify that their documents reflect their final wishes if a challenge is brought. And, you can imagine no lesser fury like a parent who has been sued by a child or heir over their will or trust and wins. Whatever the person bringing the lawsuit was to inherit under the estate plan probably evaporates entirely thereafter via a change to the estate plan.

If you believe you will have an heir that would contest your will or trust, or just want peace of mind that your will or trust will not be contested, and if your state has a “put up or lawyer up” law regarding will and trust contests, consideration should be given to exercising this option. If your state does not have such a law, it has generally always been possible for a person to initiate and prosecute a declaratory judgment action against heirs, beneficiaries and disinherited persons, to “smoke out” objections to capacity or validity before death. In other words, you can ask a court to declare your will or trust valid and thus anyone objecting must come forward or forever hold their peace.

In closing, it is important to remember that just because you have a will or trust does not mean what you have written is, well, going to be what you have written. Yes, there is a strong presumption that wills and trusts are valid, and the burden is on the person bringing the contest. However, as with litigation in general, courthouses can yield strange (or wrong) results. If a person really wants to ensure their will or trust ends up being their final wishes, the avenues in this article are a good way to ensure such. Doing so will help ensure what you have written, ends up staying what you have written.

John J. Schwarz, II, is a lifelong farmer and has been an agricultural law attorney for 17 years and is passionate about helping farm families establish succession plans. Natalie J. Boocher is a long-time farm elder law and Medicaid planning attorney helping farmers protect their farms from the nursing homes and Medicaid. Both can be reached at 574-643-9999 and www.thefarmlawyer.com.

These articles are for general informational purposes only and do not constitute an attorney-client relationship or specific legal advice.