§ 29-1-6-1 — Construction of wills; rules

Indiana § 29-1-6-1

• Jurisdiction: Indiana
• Art. 1: PROBATE CODE
• Ch. 6: Construction of Wills, Renunciation of Interests, and

Text

In the absence of a contrary intent appearing in
the will, wills shall be construed as to real and personal estate in
accordance with the rules in this section.
(a) Any estate, right, or interest in land or other things acquired by
the testator after the making of the testator's will shall pass as if title
was vested in the testator at the time of making of the will.
(b) All devises of real estate shall pass the whole estate of the
testator in the premises devised, although there are no words of
inheritance or of perpetuity, whether or not at the time of the execution
of the will the decedent was the owner of that particular interest in the
real estate devised. Such devise shall also pass any interest which the
testator may have at the time of the testator's death as vendor under a
contract for the sale of such real estate.
(c) A devise of real or personal estate, whether directly or in trust,
to the testator's or another designated person's "heirs", "next of kin",
"relatives", or "family", or to "the persons thereunto entitled under the
intestate laws" or to persons described by words of similar import, shall
mean those persons (including the spouse) who would take under the
intestate laws if the testator or other designated person were to die
intestate at the time when such class is to be ascertained, domiciled in
this state, and owning the estate so devised. With respect to a devise
which does not take effect at the testator's death, the time when such
class is to be ascertained shall be the time when the devise is to take
effect in enjoyment.
(d) In construing a will making a devise to a person or persons
described by relationship to the testator or to another, any person
adopted prior to the person's twenty-first birthday before the death of
the testator shall be considered the child of the adopting parent or
parents and not the child of the natural or previous adopting parents.
However, if a natural parent or previous adopting parent marries the
adopting parent before the testator's death, the adopted person shall
also be considered the child of such natural or previous adopting
parent. Any person adopted after the person's twenty-first birthday by
the testator shall be considered the child of the testator, but no other
person shall be entitled to establish relationship to the testator through
such child.
(e) In construing a will making a devise to a person described by
relationship to the testator or to another, a person born out of wedlock
shall be considered the child of the child's mother, and also of the
child's father, if, but only if, the child's right to inherit from the child's
father is, or has been, established in the manner provided in IC 29-1-2-7.
(f) A will shall not operate as the exercise of a power of
appointment which the testator may have with respect to any real or
personal estate, unless by its terms the will specifically indicates that
the testator intended to exercise the power.
(g) If a devise of real or personal property, not included in the
residuary clause of the will, is void, is revoked, or lapses, it shall
become a part of the residue, and shall pass to the residuary devisee.
Whenever any estate, real or personal, shall be devised to any
descendant of the testator, and such devisee shall die during the
lifetime of the testator, whether before or after the execution of the will,
leaving a descendant who shall survive such testator, such devise shall
not lapse, but the property so devised shall vest in the surviving
descendant of the devisee as if such devisee had survived the testator
and died intestate. The word "descendant", as used in this section,
includes children adopted during minority by the testator and by the
testator's descendants and includes descendants of such adopted
children. "Descendant" also includes children of the mother who are
born out of wedlock, and children of the father who are born out of
wedlock, if, but only if, such child's right to inherit from such father is,
or has been, established in the manner provided in IC 29-1-2-7. This
rule applies where the parent is a descendant of the testator as well as
where the parent is the testator. Descendants of such children shall also
be included.
(h) Except as provided in subsection (m), if a testator in the
testator's will refers to a writing of any kind, such writing, whether
subsequently amended or revoked, as it existed at the time of execution
of the will, shall be given the same effect as if set forth at length in the
will, if such writing is clearly identified in the will and is in existence
both at the time of the execution of the will and at the testator's death.
(i) If a testator devises real or personal property upon such terms
that the testator's intentions with respect to such devise can be
determined at the testator's death only by reference to a fact or an event
independent of the will, such devise shall be valid and effective if the
testator's intention can be clearly ascertained by taking into
consideration such fact or event even though occurring after the
execution of the will.
(j) If a testator devises or bequeaths property to be added to a trust
or trust fund which is clearly identified in the testator's will and which
trust is in existence at the time of the death of the testator, such devise
or bequest shall be valid and effective. Unless the will provides
otherwise, the property so devised or bequeathed shall be subject to the
terms and provisions of the instrument or instruments creating or
governing the trust or trust fund, including any amendments or
modifications in writing made at any time before or after the execution
of the will and before or after the death of the testator.
(k) If a testator devises securities in a will and the testator then
owned securities that meet the description in the will, the devise
includes additional securities owned by the testator at death to the
extent the additional securities were acquired by the testator after the
will was executed as a result of the testator's ownership of the
described securities and are securities of any of the following types:
(1) Securities of the same organization acquired because of an
action initiated by the organization or any successor, related, or
acquiring organization, excluding any security acquired by
exercise of purchase options.
(2) Securities of another organization acquired as a result of a
merger, consolidation, reorganization, or other distribution by the
organization or any successor, related, or acquiring organization.
(3) Securities of the same organization acquired as a result of a
plan of reinvestment.
Distributions in cash before death with respect to a described security
are not part of the devise.
(l) For purposes of this subsection, "incapacitated principal" means
a principal who is an incapacitated person. An adjudication of
incapacity before death is not necessary. The acts of an agent within the
authority of a durable power of attorney are presumed to be for an
incapacitated principal. If:
(1) specifically devised property is sold or mortgaged by; or
(2) a condemnation award, insurance proceeds, or recovery for
injury to specifically devised property are paid to;
a guardian or an agent acting within the authority of a durable power
of attorney for an incapacitated principal, the specific devisee has the
right to a general pecuniary devise equal to the net sale price, the
amount of the unpaid loan, the condemnation award, the insurance
proceeds, or the recovery.
(m) A written statement or list that:
(1) complies with this subsection; and
(2) is referred to in a will;
may be used to dispose of items of tangible personal property, other
than property used in a trade or business, not otherwise specifically
disposed of by the will. To be admissible under this subsection as
evidence of the intended disposition, the writing must be signed by the
testator and must describe the items and the beneficiaries with
reasonable certainty. The writing may be prepared before or after the
execution of the will. The writing may be altered by the testator after
the writing is prepared. The writing may have no significance apart
from the writing's effect on the dispositions made by the will. If more
than one (1) otherwise effective writing exists, then, to the extent of a
conflict among the writings, the provisions of the most recent writing
revoke the inconsistent provisions of each earlier writing.
Formerly: Acts 1953, c.112, s.601; Acts 1967, c.77, s.1; Acts
1973, P.L.287, SEC.4. As amended by P.L.152-1987, SEC.10;
P.L.118-1997, SEC.12; P.L.238-2005, SEC.8; P.L.6-2010, SEC.6;
P.L.36-2011, SEC.3; P.L.149-2012, SEC.6.