Welcome to the Alerding Castor Hewitt LLP probate litigation blog. The purpose of this blog is to provide a brief synopsis of recently decided opinions by the Indiana Supreme Court and Indiana Court of Appeals pertaining to probate litigation and will be updated on a regular basis. We invite you to subscribe to this blog; please subscribe by clicking on the RSS icon below. If you have any questions regarding probate litigation matters, you can contact us here.
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...Read More »
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...Read More »
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...Read More »
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...Read More »
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...Read More »
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...Read More »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...Read More »
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...Read More »
The Memorial Stone
Sam died. His will provided $30,000 for an elaborate funeral. As the last guests departed the affair, his wife's oldest and dearest friend turned to her and said, "Well, I'm sure Sam would be pleased." Lowering her voice, she leaned in close. "How much did this really cost?"
"All of it," said Sam's wife. "Thirty thousand."
"No!" exclaimed the friend. "I mean, it was very nice, but $30,000???"
The wife answered, "The funeral was $6,500. I donated $500 to the church....Read More »
Sam died. His will provided $30,000 for an elaborate funeral. As the last guests departed the affair, his wife's oldest and dearest friend turned to her and said, "Well, I'm sure Sam would be pleased." Lowering her voice, she leaned in close. "How much did this really cost?"
"All of it," said Sam's wife. "Thirty thousand."
"No!" exclaimed the friend. "I mean, it was very nice, but $30,000???"
The wife answered, "The funeral was $6,500. I donated $500 to the church....Read More »
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...
Read More »This week's chuckle:
Tower: "Delta 351, you have traffic at 10 o'clock, 6 miles!"
Delta 351: "Give us another hint! We have digital watches!"
**************************************************************************************************
Tower: "TWA 2341, for noise abatement turn right 45 degrees."
TWA 2341: "Center, we are at 35,000 feet. How much noise can we make up here?"
Tower: "Sir, have you ever heard the noise a 747 makes when it hits a 727?"
***************************...Read More »
Tower: "Delta 351, you have traffic at 10 o'clock, 6 miles!"
Delta 351: "Give us another hint! We have digital watches!"
**************************************************************************************************
Tower: "TWA 2341, for noise abatement turn right 45 degrees."
TWA 2341: "Center, we are at 35,000 feet. How much noise can we make up here?"
Tower: "Sir, have you ever heard the noise a 747 makes when it hits a 727?"
***************************...Read More »
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...Read More »
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...Read More »Originally, I planned on posting humor on
Friday, but it seems that Monday may be the better day for a
chuckle. The original invitation remains, if the humor comes
directly to me from a subscriber email or comment, I'll give the
subscriber credit for the post. So send me the humor - keep it
clean (or relatively clean) and you may see your named posted
here.
Today's chuckle:
Dispute Between Neighbors (supposedly a true story)
A certain town councilor in Wales had a beautiful view of the mountains,...
Read More »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...
Thank you for reading and subscribing to this blog. Let's
face it, sometimes probate litigation can bring out the worst in
people and probate attorneys need a good chuckle to clear the air.
As such, and as a new feature for this blog, every Friday I will be
posting the best humor that I receive during the preceding
week. If the humor comes directly to me from a subscriber
email or comment, I'll give the subscriber credit for the post.
Fair enough? So send me the humor - keep it clean (or...Read More »
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....Read More »
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...Read More »
… courts must proceed with caution in analyzing these situations and that an automatic presumption that any adult child who assists an aging...Read More »
In the vast majority of probate litigation (especially will contests), the medical condition of the decedent will be at issue. Did the decedent have sufficient mental capacity to make the will? Was the decedent medicated on the day the will was executed? The list of issues that can arise from the decedent’s medical history can be substantive. As such, evidence of the decedent’s medical history can become extremely important. This leads to the question of what evidence of the...
Read More »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...Read More »
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...Read More »
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...
Read More »While not directly a probate litigation
decisions, the following decision may be of interest to some
probate attorneys since it involves a contested disinterment of a
deceased’s remains – an issue that can occasionally arise during
probate litigation.
E. Lee Warren, et al v. IOOF Cemetery, et al.
Case No. 02A03-0806-
CV-333
In 1970, the husband passed away and was buried in a Kentucky cemetery where the wife also planned to be buried. Sometime thereafter, the wife moved in with her daughter who...
Read More »Probate attorneys involved in probate
litigation (and perhaps all attorneys involved in any litigation
regardless of whether it involves probate, business law, trademark,
intellectual property or any other matter in litigation) may wish
to consider the following opinion:
James W. Smyth v. Judy G. Hester & Estate of Timothy P.
Brazil. Case
No. 29A02-0803-CV-237
This matter involved the trial court’s award of attorneys’ fees to an estate and an attorney for actions taken by a law firm on behalf...
Read More »The Indiana appellant courts have not issued any decisions in the
past few days which impact on probate litigation. Probate
litigators, however, may find this quote quite insightful:
My thanks to Christopher "CT" Stephen - Alerding Castor LLP's newly added attorney - for alerting me to this quote.
Read More »
"Death is not the end. There remains
the litigation over the estate."
-Ambrose Gwinnett Bierce
(June 24, 1842 – 1914?)
My thanks to Christopher "CT" Stephen - Alerding Castor LLP's newly added attorney - for alerting me to this quote.
Read More »
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