Summary of Recent Cases

Mercantile Bank v. Underwood, 2009 WL 1384864 (Ind.App. May 18, 2009) (trial rule 21(A) misjoinder of parties applies in trust litigation; journey's account statute preserved claim).

Estate of Prickett v. Womersley, 885 N.E.2d 619 (Ind.App. 2008), transfer granted 2009 WL 1351823 (Ind. May 13, 2009) (daughter's services to parent under guardianship presumed gratuitous; daughter had to show ward intended to pay, and she expected compensation; Court re-affirms the concept that a guardianship does not preclude a ward from executing a will, citing Harrison v. Bishop, 30 N.E. 1069, 1071 (Ind. 1892); Court cites I.C. § 29-3-8-5(b) that "Every contract, sale, or conveyance executed by a protected person is void....", but then approved of Court of Appeals language in Schwartz v. Schwartz, 773 N.E.2d at 355 that "an implied contract can exist between the protected person and provider of services," such as where lawyers might "recover compensation for services rendered [to a ward], as for necessaries, if such services are faithfully and intelligently performed.")

Zoeller v. East Chicago, 904 N.E.2d 213 (Ind. 2009) (adoption of the Trust Code did not abrogate, and instead codified, the common law view of the Attorney General's authority with respect to public charitable trusts; plaintiff can assert claims for both unjust enrichment and a constructive trust).

Guardianship of ALC, 902 N.E.2d 343 (Ind.App. 2009) (trial court has discretion to overlook priority person and appoint guardian in best interests of ward; trial court could not use parent visitation schedule for grandparents).

In re Cochran Trust, 901 N.E.2d 1128 (Ind.App. 2009) (trustee acted in accordance with settlor's intent and as a prudent fiduciary by exchanging life insurance policies, even though subsequent premature death cost heirs millions).

Warren v. IOOF Cemetery, 901 N.E.2d 615 (Ind.App. 2009) (Factors relevant to a disinterment decision include: (1) whether the initial resting place was made with deliberation and without mental reservation that at some future time removal might be desired, (2) whether there are evidences of antagonism and hostility between the surviving spouse and the owners of the tomb or burial plot such as would prevent the surviving spouse from visiting the grave freely and without embarrassment or humiliation, (3) whether the deceased spouse had evidenced a preference for one location as opposed to another, and (4) whether the disinterment would conflict with the deceased person's religious beliefs).

In re Paternity of Duran, 900 N.E.2d 454 (Ind.App. 2009) (child could not inherit intestate portion of eight million from natural father after being adopted by another; collateral heir who ended up inheriting lacked standing to intervene as of right in paternity action).

Lewis v. Estate of Wynn, 900 N.E.2d 476 (Ind.App. 2009) (executor could not prove surviving wife negligently stored gun that husband used to kill step daughter; wife's contributions to joint account not subject to claims).

Ramirez v. Wilson, 901 N.E.2d 1 (Ind.App. 2009) (full-term, viable, unborn fetus was not a "child" for purposes of child wrongful death statute).

Bank One v. Surber, 899 N.E.2d 693 (Ind.App. 2009) (Bank did not pay surviving joint bank account holder and instead paid account to decedent's estate out of confusion of ownership; heirs settled separately which did not release bank; trial court found bank acted negligently and breached contract by not paying surviving joint account holder money, and awarded damages that included amount of account she did not receive by way of the settlement, and all of her attorney fees fighting with the heirs. In effect the trial court required the bank to pay twice. The Court of Appeals reversed on this point and held the bank entitled to a set off. In footnote: "We think it significant to note Bank One's failure to seek interpleader under Indiana Trial Rule 22. Had Bank One sought interpleader, it could have deposited the funds of the Account with the probate court. Bank One then would have been discharged from liability and not incurred the substantial attorney fees it no doubt has incurred in litigating this action." The Court of Appeals affirmed damages for the attorney fees Surber spent (not paid by the estate). The elements of this third party litigation exception are: (1) the plaintiff became involved in a legal dispute because of the defendant's breach of contract or other wrongful act; (2) the litigation was with a third party and not the defendant; and (3) the fees were incurred in the third-party litigation).

In re Paternity of N.L.P., 898 N.E.2d 403 (Ind.App. 2009) (guardian ad litem in fee petition must separate time spent on legal matters and time spent on routine guardianship administration matters).   

Estate and Trust Decisions of Interest for 2008

Bettenhausen v. Godby, 878 N.E.2d 1277 (Ind.App. 2008) (five years after estate opened corporation and shareholder filed declaratory judgment action against estate to enforce buy sell agreement; court held plaintiffs had to pursue claim against will beneficiaries directly under I.C. 29-1-14-21).

Estate of Deiwart, 879 N.E.2d 1126 (Ind.App. 2008) (executor waited too late to exercise option to purchase real estate; estate could appeal such interlocutory order as of right).

Gibbs v. Kashak, 883 N.E.2d 825 (Ind.App. 2008) (court ordered partition of trust land rather than sale).

Decker v. Zengler, 883 N.E.2d 839 (Ind.App. 2008) (any statement made by joint account holder, after accounts were created, regarding her intention that funds in her accounts were to be divided equally among her children did not overcome presumption to surviving account holder; court required joint account holder to notify bank in writing of intent to change survivorship right).

Hoesman v. Sheffler, 886 N.E.2d 622 (Ind.App. 2008) (beneficiaries had statutory lien on trustee's individual property; issues of fact whether trustee's conveyance of property to mother was fraudulent).

Ickes v. Waters, 879 N.E.2d 1105, rehearing granted 886 N.E.2d 643 (Ind.App. 2008) (two year limitations period for attorney malpractice started when trust funded and beneficiary lost control of her assets; insufficient facts to show doctrine of continuous representation).

Davis v. Davis, 889 N.E.2d 374 (Ind.App. 2008) (trustee breached fiduciary duties by failing to separate trust property, self dealing, and no accurate accounts; court imputed 8% interest to loans; trust required to pay beneficiary attorney fees, and trustee required to reimburse trust).

First Farmers v. Whorley, 891 N.E.2d 604 (Ind.App. 2008) (distinguished Inlow v. Henderson Daily because decedent's estate had closed - so sole heir had standing to bring action against former guardian; one year limitations period to challenge guardianship accounting did not apply to matters not disclosed on the accounting).

Huff v. Huff, 892 N.E.2d 1241, opinion on rehearing 895 N.E.2d 407 (Ind.App. 2008) (three year limitations period to challenge trust accounting did not apply where the trustee did not disclose the disputed deed; six year limitations period applied to complaint involving real estate).

Estate of Inlow, 893 N.E.2d 734 (Ind.App. 2008) (personal representative was entitled to reimbursement of funeral and burial expenses from wrongful death settlement).

Carlson v. Sweeney, 868 N.E.2d 4, on rehearing 872 N.E.2d 626 (Ind.App. 2007), transfer granted and opinion at 895 N.E.2d 1191 (Ind. 2008) (Testator wanted Will that minimized taxes. Language used by attorney may have created general power of appointment rather than ascertainable standard. Probate Court reformed the trust to correct the language that if accepted by the IRS would minimize the tax. Unknown yet whether IRS will go along. In separate action in this case estate beneficiaries sued attorney for cost of having to reform Will, for attorney fees dealing with the IRS, and for possible tax, interest and penalties. Limitations period began to run when attorney informed beneficiaries of defective language. Action was not premature even though damages not definitely ascertainable until IRS concludes the matter. Indiana Supreme Court affirmed all of these holdings by the Court of Appeals, 868 N.E.2d 4 (Ind.App. 2007), and corrected the opinion concerning the issue of reformation. Supreme Court held that the malpractice case was no place to second guess the prior Probate Court's ruling to reform the trust. Now that the Indiana Supreme Court has reviewed and allowed the reformation it has a better chance of binding the IRS under Bosch. Heirs entitled to their attorney fees as an element of damages in the malpractice case).

Heaphy v. Ogle, 896 N.E.2d 551 (Ind.App. 2008) (personal representative allowed to keep car that decedent gave him a week before death).

In re Alford Trust, 897 N.E.2d946 (Ind.App. 2008) (Indiana court did not have subject matter jurisdiction to address trust administration issues where the trust applied the laws of the State of Virginia and the trustee had administered the trust property in Virginia).

Dean v. Pelham, 899 N.E.2d 662 (Ind.App. 2008), affirmed on rehearing, 901 N.E.2d 648 (Ind.App. 2009) (joint bank account belongs to survivor unless another heir can show a different intent by clear and convincing evidence).

Estate and Trust Decisions of Interest for 2007

Guardianship of E.N., 853 N.E.2d 960 (Ind.App. 2006), on transfer 877 N.E.2d 795 (Ind. 2007) (court of appeals held I.C. 29-3-9-4 allowed trial court to pick the effective will and rewrite it to include children who had "repaired" their relationship with the ward; Indiana Supreme Court would not allow trial court to approve estate plan that distributed all of the ward's property into a revocable trust; appears trial court has great discretion to approve gifts and re-write estate plan).

Guardianship of Knepper, 856 N.E.2d 150 (Ind.App. 2006), opinion on rehearing 861 N.E.2d 717 (Ind.App. 2007) (decedent's sister rebutted presumption of undue influence after being named beneficiary on accounts. On rehearing Court held that plaintiffs waived application of statute which required guardianship court approval for sale or encumbrance of such property).

Estate of Scholz, 859 N.E.2d 731 (Ind.App. 2007) (Will gave son a life estate in the farm; yet as executor the son had a fiduciary duty to pay the estate fair market cash rent).

Estate of Robertson, 859 N.E.2d 772 (Ind.App. 2007) (trust terms in restraint of marriage void against public policy; with invalid condition removed, trust valid).

Estate of Hermann, 864 N.E.2d 334 (Ind. 2007) (where Will stated that wife would receive the home as part of her one half of the residue, her share of the residue would be calculated as if home were part of the estate, even though the deed passed title by tenancy by the entireties).

Hunter v. Klimowicz, 867 N.E.2d 626, on rehearing, 872 N.E.2d 1109 (Ind.App. 2007) (Settlor successfully rescinded her trust on the basis of unsound mind and undue influence. Court examines the test for capacity prior to and after 2006 amendment to I.C. § 30-4-2-10(c)).

Jensen v. New Albany, 868 N.E.2d 525 (Ind.App. 2007) (decedent conveyed realty to city for recreational use. State's acquisition of property for road construction trumped heirs' attempt to enforce reversionary clause in deed).

Harlow v. Parkevich, 868 N.E.2d 822 (Ind.App. 2007) (trustee suit against attorney and accountant not subject to arbitration clause in agreement that post dated alleged wrongdoing).

Guardianship of Adkins, 868 N.E.2d 878 (Ind.App. 2007) (parents appointed guardians rather than life partner).

Keenan v. Butler, 869 N.E.2d 1284 (Ind.App. 2007) (The fundamental issue involved the proper venue of a dispute over a breach of contract to devise. Hopefully the opinion can be limited to holding that the court which probates the decedent's Will holds res in custodia legis so has superior jurisdiction over any will contest, will interpretation, or challenge to the ultimate distribution of the estate property. But the opinion went on to state that a breach of contract to devise is not a claim or a will contest, which is not correct. Neither the parties' briefs nor the Court cited established precedent that a breach of contract to devise must be filed as a timely claim in the estate: Bell v. Hewitt, 24 Ind. 280 (1865); Lee v. Carter, 52 Ind. 342 (1876); Caviness v. Rushton, 101 Ind. 500 (1885); Clarkson v. Whitaker, 657 N.E.2d 139 (Ind.App. 1995). Keenan contradicts the lengthy teachings of Brown v. Edwards, 640 N.E.2d 401 (Ind.App. 1994). If a claim, three month limitations period applies; if not a claim, heir can file anytime before final accounting. If a claim, then Deadmans' Statute applies, the estate usually deducts the amount from inheritance tax, and claimant pays income tax).

Estate of Holt, 870 N.E.2d 511 (Ind.App. 2007) (describes standard to set aside decedent's prior marriage in petition to determine heirship).

State v. Hammans, 870 N.E.2d 1071 (Ind.App. 2007) (co-trustees of special needs trust could receive payment for administrative and personal services to beneficiary before distribution to the remainderman (the State)).

Johnson v. Morgan, 871 N.E.2d 1050 (Ind.App. 2007) (once a will contest is timely filed, three month limitations period does not prevent interested heirs from joining as plaintiffs or defendants or switching sides).

Estate of Harris, 876 N.E.2d 1132 (Ind.App. 2007) (Deadmans' Statute barred caregiver from testifying to inherit certificate of deposit).

Carlson v. Warren, 878 N.E.2d 844 (Ind.App. 2007) (estate waived Deadmans' Statute in designating defendant's deposition in support of motion for summary judgment; attorney can testify to his or her habits in drafting deeds; evidence insufficient to show caretakers unduly influenced decedent).