CHAPTER 5. EXECUTION AND REVOCATION OF WILLS
IC 29-1-5
Chapter 5. Execution and Revocation of Wills
IC 29-1-5-1
Sound mind; age; armed forces
Sec. 1. Any person of sound mind who is eighteen (18) years ofage or older, or who is younger and a member of the armed forces,or of the merchant marine of the United States, or its allies, maymake a will.
(Formerly: Acts 1953, c.112, s.501; Acts 1971, P.L.404, SEC.1.)
IC 29-1-5-2
Writing; witnesses
Sec. 2. (a) All wills except nuncupative wills shall be executed inwriting.
(b) Any person competent at the time of attestation to be a witnessgenerally in this state may act as an attesting witness to the executionof a will and his subsequent incompetency shall not prevent theprobate thereof.
(c) If any person shall be a subscribing witness to the executionof any will in which any interest is passed to him, and such willcannot be proved without his testimony or proof of his signaturethereto as a witness, such will shall be void only as to him andpersons claiming under him, and he shall be compelled to testifyrespecting the execution of such will as if no such interest had beenpassed to him; but if he would have been entitled to a distributiveshare of the testator's estate except for such will, then so much ofsaid estate as said witness would have been thus entitled to, notexceeding the value of such interest passed to him by such will, shallbe saved to him.
(d) No attesting witness is interested unless the will gives to himsome personal and beneficial interest. The fact that a person is namedin the will as executor, trustee, or guardian, or as counsel for theestate, personal representative, trustee or guardian does not make himan interested person.
(Formerly: Acts 1953, c.112, s.502.)
IC 29-1-5-3
Signatures; videotape
Sec. 3. (a) This section applies to a will executed before, on, orafter July 1, 2003. A will, other than a nuncupative will, must beexecuted by the signature of the testator and of at least two (2)witnesses on:
(1) a will under subsection (b);
(2) a self-proving clause under section 3.1(c) of this chapter; or
(3) a self-proving clause under section 3.1(d) of this chapter.
(b) A will may be attested as follows:
(1) The testator, in the presence of two (2) or more attestingwitnesses, shall signify to the witnesses that the instrument isthe testator's will and either: (A) sign the will;
(B) acknowledge the testator's signature already made; or
(C) at the testator's direction and in the testator's presencehave someone else sign the testator's name.
(2) The attesting witnesses must sign in the presence of thetestator and each other.
An attestation or self-proving clause is not required under thissubsection for a valid will.
(c) A will that is executed substantially in compliance withsubsection (b) will not be rendered invalid by the existence of:
(1) an attestation or self-proving clause or other language; or
(2) additional signatures;
not required by subsection (b).
(d) A will executed in accordance with subsection (b) isself-proved if the witness signatures follow an attestation orself-proving clause or other declaration indicating in substance thefacts set forth in section 3.1(c) or 3.1(d) of this chapter.
(e) This section shall be construed in favor of effectuating thetestator's intent to make a valid will.
(Formerly: Acts 1953, c.112, s.503; Acts 1975, P.L.288, SEC.4.) Asamended by Acts 1978, P.L.132, SEC.2; P.L.273-1983, SEC.1;P.L.273-1985, SEC.1; P.L.262-1989, SEC.1; P.L.4-2003, SEC.1;P.L.176-2003, SEC.6.
IC 29-1-5-3.1
Self-proving clause
Sec. 3.1. (a) This section applies to a will executed before, on, orafter July 1, 2003. When a will is executed, the will may be:
(1) attested; and
(2) made self-proving;
by incorporating into or attaching to the will a self-proving clausethat meets the requirements of subsection (c) or (d). If the testatorand witnesses sign a self-proving clause that meets the requirementsof subsection (c) or (d) at the time the will is executed, no othersignatures of the testator and witnesses are required for the will to bevalidly executed and self-proved.
(b) If a will is executed by the signatures of the testator andwitnesses on an attestation clause under section 3(b) of this chapter,the will may be made self-proving at a later date by attaching to thewill a self-proving clause signed by the testator and witnesses thatmeets the requirements of subsection (c) or (d).
(c) A self-proving clause must contain the acknowledgment of thewill by the testator and the statements of the witnesses, each madeunder the laws of Indiana and evidenced by the signatures of thetestator and witnesses (which may be made under the penalties forperjury) attached or annexed to the will in form and contentsubstantially as follows:
We, the undersigned testator and the undersigned witnesses,respectively, whose names are signed to the attached or foregoinginstrument declare: (1) that the testator executed the instrument as the testator'swill;
(2) that, in the presence of both witnesses, the testator signed oracknowledged the signature already made or directed another tosign for the testator in the testator's presence;
(3) that the testator executed the will as a free and voluntary actfor the purposes expressed in it;
(4) that each of the witnesses, in the presence of the testator andof each other, signed the will as a witness;
(5) that the testator was of sound mind when the will wasexecuted; and
(6) that to the best knowledge of each of the witnesses thetestator was, at the time the will was executed, at least eighteen(18) years of age or was a member of the armed forces or of themerchant marine of the United States or its allies.
______________
Testator
____ ______________
Date Witness
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Witness
(d) A will is attested and self-proved if the will includes or hasattached a clause signed by the testator and the witnesses thatindicates in substance that:
(1) the testator signified that the instrument is the testator's will;
(2) in the presence of at least two (2) witnesses, the testatorsigned the instrument or acknowledged the testator's signaturealready made or directed another to sign for the testator in thetestator's presence;
(3) the testator executed the instrument freely and voluntarilyfor the purposes expressed in it;
(4) each of the witnesses, in the testator's presence and in thepresence of all other witnesses, is executing the instrument asa witness;
(5) the testator was of sound mind when the will was executed;and
(6) the testator is, to the best of the knowledge of each of thewitnesses, either:
(A) at least eighteen (18) years of age; or
(B) a member of the armed forces or the merchant marine ofthe United States or its allies.
(e) This section shall be construed in favor of effectuating thetestator's intent to make a valid will.
As added by P.L.4-2003, SEC.2.
IC 29-1-5-3.2
Videotape
Sec. 3.2. Subject to the applicable Indiana Rules of TrialProcedure, a videotape may be admissible as evidence of thefollowing: (1) The proper execution of a will.
(2) The intentions of a testator.
(3) The mental state or capacity of a testator.
(4) The authenticity of a will.
(5) Matters that are determined by a court to be relevant to theprobate of a will.
As added by P.L.4-2003, SEC.3.
IC 29-1-5-4
Nuncupative will; requisites; limitations
Sec. 4. (a) A nuncupative will may be made only by a person inimminent peril of death, whether from illness or otherwise, and shallbe valid only if the testator died as a result of the impending peril,and must be
(1) Declared to be his will by the testator before two (2)disinterested witnesses;
(2) Reduced to writing by or under the direction of one (1) of thewitnesses within thirty (30) days after such declaration; and
(3) Submitted for probate within six (6) months after the death ofthe testator.
(b) The nuncupative will may dispose of personal property onlyand to an aggregate value not exceeding one thousand ($1,000)dollars, except that in the case of persons in active military, air ornaval service in time of war the aggregate amount may be tenthousand ($10,000) dollars.
(c) A nuncupative will does not revoke an existing written will.Such written will is changed only to the extent necessary to giveeffect to the nuncupative will.
(Formerly: Acts 1953, c.112, s.504.)
IC 29-1-5-5
Compliance with law
Sec. 5. A will is legally executed if the manner of its executioncomplies with the law, in force either at the time of execution or atthe time of the testator's death, of
(1) This state, or
(2) The place of execution, or
(3) The domicile of the testator at the time of execution or at thetime of his death.
(Formerly: Acts 1953, c.112, s.505.)
IC 29-1-5-6
Revocation; revival
Sec. 6. No will in writing, nor any part thereof, except as in thisarticle provided, shall be revoked, unless the testator, or some otherperson in his presence and by his direction, with intent to revoke,shall destroy or mutilate the same; or such testator shall executeother writing for that purpose, signed, subscribed and attested asrequired in section 3 or 3.1 of this chapter. A will can be revoked inpart only by the execution of a writing as herein provided. And if,
after the making of any will, the testator shall execute a second, arevocation of the second shall not revive the first will, unless it shallappear by the terms of such revocation to have been his intent torevive it, or, unless, after such revocation, he shall duly republish theprevious will.
(Formerly: Acts 1953, c.112, s.506.) As amended by Acts 1982,P.L.171, SEC.16; P.L.4-2003, SEC.4.
IC 29-1-5-7
Nuncupative will; revocation
Sec. 7. A nuncupative will or any part thereof can be revoked byanother nuncupative will.
(Formerly: Acts 1953, c.112, s.507.)
IC 29-1-5-8
Revocation; divorce; annulment of marriage; change incircumstances
Sec. 8. If after making a will the testator is divorced, allprovisions in the will in favor of the testator's spouse so divorced arethereby revoked. Annulment of the testator's marriage shall have thesame effect as a divorce as hereinabove provided. With thisexception, no written will, nor any part thereof, can be revoked byany change in the circumstances or condition of the testator.
(Formerly: Acts 1953, c.112, s.508.)
IC 29-1-5-9
Trust inter vivos; execution
Sec. 9. An instrument creating an inter vivos trust in order to bevalid need not be executed as a testamentary instrument pursuant tosection 3 or 3.1 of this chapter, even though such trust instrumentreserves to the maker or settlor the power to revoke, or the power toalter or amend, or the power to control investments, or the power toconsume the principal, or because it reserves to the maker or settlorany one or more of said powers.
(Formerly: Acts 1953, c.112, s.509.) As amended by Acts 1982,P.L.171, SEC.17; P.L.4-2003, SEC.5.