Will Formalities

[NOTE: The regulations relating to probate proceedings have been substantially amended since 2000. Some of the following discussion may no longer be applicable. Please consult the current edition of 25 C.F.R. Part 15 and 43 C.F.R. Part 4, Subpart D, to see if your issue was affected by the amendments.]

VI. Will Formalities

1. Witnesses
2. Testamentary Capacity
3. Undue Influence

VI. Will Formalities

The execution of an Indian will is controlled by 25 U.S.C. 373 and 43 C.F.R. 4.260-262, not state law. Estate of Carrie Standing Haddon Miller, 10 IBIA 128 (1982). Whether an Indian decedent has executed a will passing trust property is a question of Federal, not state law. Estate of Teresa Mitchell, 25 IBIA 88 (1993). Publication is not required for valid execution of a will conveying trust property. Estate of Ella Dautobi, 15 IBIA 111 (1987); Estate of Lena Abbie Big Bear Yellow Eagle, 17 IBIA 237 (1989). A will has been revoked when it has been physically destroyed, a statement has been signed declaring the intent to revoke it, and the testator had testamentary capacity at the time of revocation. Estate of Stella Red Star/Swift Bird, 16 IBIA 131 (1988).

A. Witnesses

An affidavit executed in accordance with 43 C.F.R. 4.233(a) constitutes prima facie evidence of due execution of the will and places the burden of proof on a will contestant. Estate of Ella Dautobi, 15 IBIA 111 (1987). A person who is related to a beneficiary under a will is not automatically disqualified from acting as an attesting witness for that will. Estate of Orville Lee Kaulay, 30 IBIA 116 (1996). The spouse of a beneficiary under a will is not a disinterested witness. Estate of Ernestine Lois Ray, 33 IBIA 92 (1998). A felony conviction does not disqualify an individual as a disinterested witness. Estate of Sallie Fawbush, 34 IBIA 254 (2000).

B. Testamentary Capacity

The burden of proof of testamentary incapacity or undue influence is on the will contestant. Estate of Clarence Thompson Burke, 18 IBIA 1 (1989). To invalidate a will for testamentary incapacity, the evidence must show: 1) that the decedent did not know the natural objects of his bounty; 2) the extent of his property; 3) or the desired distribution of that property; and 4) that this condition existed at the time of execution of the will. Estate of Virginia Enno Poitra, 16 IBIA 32 (1988); Estate of Comer Fast Eagle, 16 IBIA 40 (1988); Estate of Joseph Poolaw, 18 IBIA 358 (1990); Estate of Johanna Small Rib (Standing Twenty), 19 IBIA 236 (1991).

Long term alcohol abuse does not, per se, deprive a testator of testamentary capacity. The testator's condition at the time of execution of the will is decisive. Estate of Comer Fast Eagle, 16 IBIA 40 (1988). An insane delusion is not merely an erroneous belief, but a belief so unreasonable that it defied rational explanation or justification. Estate of Dautobi, 15 IBIA 111 (1987). An Indian testator may be deemed to be competent to make a will even though he is unable to manage his own business affairs, has had a guardian appointed for him, is illiterate, and/or is unable to speak or understand the English language. Estate of Joseph Poolaw, 18 IBIA 358 (1990). The fact that an Indian testator has been a patient at a mental hospital or has taken medication for a mental condition is insufficient to establish that the decedent lacked the testamentary capacity at the time she executed her will. Estate of Johanna Small Rib (Standing Twenty), 19 IBIA 236 (1991).

C. Undue Influence

To invalidate a will for undue influence, the will contestant must show: 1) that the testator was susceptible of being dominated by another; 2) that the person allegedly influencing him in the execution of the will was capable of controlling his mind and actions; 3) that such person did exert influence upon the decedent of a nature calculated to induce or coerce him to make a will contrary to his own desires; and 4) that the will is contrary to the decedent's own desires. Estate of Alice Jackson (John), 17 IBIA 162 (1989); Estate of Leon Levi Harney, 16 IBIA 18 (1987); Estate of Thomas Longtail, Jr., 13 IBIA 136 (1985); Estate of Joseph Poolaw, 18 IBIA 358 (1990); Estate of Helen Fisher Parker, 27 IBIA 271 (1995). A rebuttable presumption of undue influence is raised when the testator and the principal beneficiary of the will were in a special confidential relationship, especially if it involved financial matters and the burden of rebutting the presumption is on the proponent of the will. Estate of Charles Webster Hills, 13 IBIA 188 (1985); Estate of Roger Wilkin Rose, 13 IBIA 331 (1985); Estate of Philip Malcolm Bayou, 13 IBIA 200 (1985); Estate of Orville Lee Kaulay, 30 IBIA 116 (1996); Estate of Ernestine Lois Ray, 33 IBIA 92 (1998).

In order to rebut the presumption of undue influence the proponent of the will must show that the effects of the will were thoroughly discussed with the testator by an objective, independent person. Estate of Jesse Pawnee, 15 IBIA 64 (1986); Estate of Blanche Russell (Hosay), 18 IBIA 40 (1989). The fact that the testator lived with the sole beneficiary and was dependent on the beneficiary for care, does not alone give rise to a presumption of undue influence. Estate of Virginia Enno Poitra, 16 IBIA 32 (1988). The burden of proof as to testamentary incapacity or undue influence in Indian probate proceedings is on those contesting the will. Estates of Evan Gillette, Sr., & Lizzie Gillette/YellowBird/Bellanger/Paint/Bedell, aka Elizabeth Burdell, 22 IBIA 133 (1992).

Links to Additional Topics in this Article

• Trust Responsibility
• General Rules of Construction
• Practice Before the Board - Procedure
• Status of Parties and Choice of Law
• Rehearings and Reopening Estates
• Property Inventories
• IBIA Jurisdiction
• The Rules