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Hunter v. Klimowicz, 867 N.E.2d 626, on rehearing, 872 N.E.2d 1109 (Ind.App. 2007) (Settlor successfully rescinded her trust on the basis of unsound mind and undue influence.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).