I know there will be an "official" congratulatory press release in
the near future, but I thought I'd take a moment to congratulate
the Alerding Castor Hewitt partners on being included in the 2011
Indiana Super Lawyers.
Brian Hewitt received the nod as one of the Top 50 Super
Lawyers in the state. This is, of course, a recurring honor
for Brian, who has been a Super Lawyer for the past several
years. Brian's practice focus is on business and probate
litigation and mediation.
The voters...
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Your friendly Indianapolis attorney at Alerding Castor Hewitt, LLP
here, this time with a probate law update. The Court of Appeals of
Indiana decided an issue of first impression yesterday in an
Indiana probate litigation matter. The case was Avery v.
Avery, --- N.E.2d ---, cause no. 49A05-1004-PL-320 (Ind. Ct.
App. Sept. 7, 2010). In short, the Court concluded that an
answer is required in a will contest. A
copy of that published opinion may be found here.
The facts relevant to the issue on...
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The ACH litigation team had its first ever (as far as I'm aware)
litigation retreat this weekend, and as I reminisce on our time, I
am struck by the realization that to be a successful business, you
have to allow your team to envision and strive for excellence with
you. This weekend we had some great discussion and
"vision-casting" on the areas of privacy litigation, Indiana
probate litigation, business law, Internet litigation, banking law,
SaaS litigation, and several other areas where we are...
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Your Indianapolis Attorney at Alerding Castor
Hewitt here with another litigation post for the business and
technology world, this time regarding preliminary
injunctions. What is a preliminary
injunction? In simple terms, it is an
equitable remedy that you can seek asking a court to order someone
else to stop doing something or cease threatening to do something
that is causing or is likely to cause you irreparable
harm. It is another weapon in the
litigation arsenal, one to restore the status...
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I am an Indianapolis Attorney here at Alerding
Castor Hewitt LLP. This is my first
blog post – so bear with me. As a brief
introduction, my role at ACH is working on our litigation team,
both at trial and on appeal if necessary, on issues related to
business law, probate litigation, SaaS litigation, and other
technology litigation – just to name a few of the areas.
One area often overlooked in the litigation
process is the area of collections. Some lawyers might look upon the collection process...
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Congratulations
are in order to Brian Hewitt, the newest parter of Alerding Castor
Hewitt, LLP, who was recognized this week as one of Indiana's 2010
top 50 Super Lawyers.
Brian concentrates his practice on estate, trust,
and guardianship planning, administration, and litigation; and
mediation and business law.
He is a Certified Estate Planning and Administration Specialist, a
Fellow of the American College of Trust and Estate Counsel, and a
member of the Probate Litigation Committee of the...
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About
three weeks ago I wrote a post addressing some of my concerns
regarding the
rumored state budget cut to innovation and entrepreneurship
initiatives. Sadly, the state legislatures decided to cut
innovation funding substantially.
On July 1 the budget for Indiana's 21st Century Research and
Technology Fund was cut by $35 million over the next two
years. This is an extremely short sighted move. It has
a negative impact on both attracting and promoting growth for
emerging technology...
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Happy Fourth of July!
You might have noticed that this blog has been very quiet for the
past month. There are two reasons for this period of silence.
First, probate litigation was not a signficant source of appellant
decisions in June. Second, Alerding Caster LLP was given the honor
and privilege of adding a new named partner as of June 28th: Brian
Hewitt.
Brian is an extremely gifted attorney with over twenty years of
experience and is an icon in the legal community. In fact, in
2009, Brian...
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For my first foray into the world of blogging,
I think the important first step is to answer the standard
journalism questions necessary for any good story, namely, the who,
what, when, where, and why. Sorry for
the length. I promise that future blogs will be
shorter. Without further adieu, here we
go . . . .
Who: This one is easy because I
know a lot about me. My name is Chris
Stephen and I consider myself first and foremost a
litigator. Some people in my field like
to classify themselves...
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Let's face it - most
contract terms are boring. SaaS licensors and their customers
want to close deals. They want to hammer out the business
terms and key legal terms and get the contract done. I don't
blame them. Nobody in their right mind wakes up in the
morning and says "I want to negotiate a contract today."
After weeks (or even months) of negotiations over key business and
legal terms, the parties often are left with a few miscellaneous
"legal" terms that seem more of a burden than...
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No new probate litigation decisions for probate attorneys. But
there has been a substantive change to Indiana Code § 29-1-4-1
which will be effective as of July 1, 2009.
This provision deals with the spousal allowance and the old
version of the provision provided that:
The surviving spouse of a decedent who was domiciled in Indiana at
his death is entitled from the estate to an allowance of
twenty-five thousand dollars ($25,000). The allowance may be
claimed against the personal property of the...
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Probate litigation is back in the appellant courts. Probate
attorneys involved in probate litigation involving claims for
services provided to a decedent during lifetime will find this
decision instructive:
Estate of Margaret H. Prickett, Deceased v. Marilyn
Prickett Womersley
71S03-0808-CV-419
Indiana law presumes that services provided by a family
member are rendered gratuitously. In this case, the Indiana Supreme
Court concluded that presumption cannot be rebutted by evidence
that the mother...
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The flow of appellant decisions addressing probate litigation has
temporarily diminished. In gaps such as this, probate attorneys may
find it useful to review some of the precedent that serves as the
basis for probate litigation: The Indiana Code.
The Indiana Code
serves as the starting point for probate matters in general as well
as for probate litigation. For example, Indiana Code §
29-1-7-17 sets forth who may file a will contest, the grounds for a
will contest and the deadline when a will...
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The Indiana Court of Appeals recently handed
down a memorandum decision (not for publication) which probate
attorneys considering the necessity of probate litigation may find
of interest since it explores the distinction between a small
estate affidavit and the actual opening of a probate estate:
Angela Foster v. Estate of Darlene
Shoemaker, Deceased, James Shoemaker, Personal representative
(NFP) 
04A05-0809-CV-562
In this matter, the decedent died intestate
leaving an estate worth approximately...
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The Indiana Court of Appeals recently handed down a decision
regarding probate litigation which probate attorneys may find
instructive since one of the issues decided involved an attorney's
decision to follow the client's instructions regarding
disbursements from an estate.
Jerry Storey v. Theodore S. Leonas, Jr. and Leonas &
Associates Ltd.
No. 46A03-0806-CV-300
The facts of this matter are somewhat unusual. An
Illinois resident died in an automobile accident in Indiana.
The other vehicle...
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While there have been no decisions lately from
the appellant courts directly addressing probate litigation
matters, the Indiana Supreme Court recently handed down a decision
that probate attorneys may wish to consider in the context if the
situation where a person assumes a duty to another person – a
situation which can oftentimes arise in matters resulting in
probate litigation.
Estate of Jerome Mintz v. Connecticut
General Life Ins. Co. and Wayne E. Gruber
Case No. No. 49S05-0805-CV-214
This...
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Undue influence is oftentimes the issue that is raised when a
decedent makes a change in their estate planning documents which
benefits a person (or persons) who have assumed a position of trust
and responsibility in the decedent's life. On March 11th, the
Indiana Court of Appeals decided a matter involving a parent-child
relationship and whether a presumption of undue influence attached
when a child benefited from a testamentary disposition from the
parent. You can can read about
that case here....
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Probate litigation often arises because siblings take issue when
they are not treated equally by their parents. In those
cases, allegations of undue influence by the favored child/children
are oftentimes made by the other siblings. Probate attorneys should
pay particular attention to the following decision given this
language from the Court of Appeals:
… courts must proceed with caution in analyzing these situations
and that an automatic presumption that any adult child who assists
an aging...
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As most probate attorneys know, probate litigation oftentimes
arises as a result of decisions made by a decedent during life
time. Sometimes, however, the decisions of a third-party
touching on business law and consulting functions can also lead to
litigation. This point is demonstrated by this recent
decision:
In the Matter of the Stuart Cochran Irrevocable Trust;
Chanell and Micaela Cochran v. Keybank, N.A.No. 71A04-0806-CV-384
This matter involved an irrevocable trust established by a...
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Probate attorneys, both
those involved in probate litigation as well as estate planning,
should consider the ramifications of the following
decision:
Rosemary Dean v. William T. Pelham, Pers. Rep. of the
Estate of William McNatt, Case No. 73A01-0806-CV-306 (Part
2)
This decision was previously
discussed on this blog here. This decision was significant
because the Indiana Court of Appeals determined that a person
designated as a “signer” or “signator” on a bank account was
entitled to the sum...
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