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Tuesday, August 04, 2015

Ind. Decisions - Supreme Court issues one opinion today, re definition of "claim" in the Probate Code

In David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al, a 10-page, 5-0 opinion, Justice Massa writes:

“Man sees but a short way into futurity; a single event, unforeseen, deranges all his plans; and teaches us that man with all his wisdom, toils for heirs he knows not who.”

—Chief Justice Andrew Kirkpatrick, Nevison v. Taylor, 8 N.J.L. 43, 46 (1824) (emphasis in original).

When he died, John Markey thought half of his assets would eventually pass to his son, David, pursuant to a contract to make and not revoke a mutual will John executed with his second wife, David’s stepmother. Sometime after John was gone, however, David’s stepmother breached that contract, instead leaving everything to her own children. David brought suit to enforce the contract, but the defendants prevailed on summary judgment: the trial court found that even though David’s suit was not a “claim” in probate, it was still subject to the three-month statute of limitations for a claim, relying on Keenan v. Butler, 869 N.E.2d 1284, 1290 n.6 (Ind. Ct. App. 2007), trans. not sought. We find this was error, as our General Assembly added a statutory definition of “claim” when it enacted our Probate Code in 1953, Ind. Code § 29-1-1-3(a)(2), and we interpret the plain language of that definition as including an action for breach of a contract to make and not revoke a will. We thus reverse, and we remand on the question of the timeliness of David’s claim, considered under the Probate Code. * * *

Of course, David’s having a claim in probate does not answer the question of whether that claim was timely filed. The general limit for such claims is three months, and he concedes he filed outside of that window. For his claim to survive, David must not only be a claimant but also a “creditor” who is “known or reasonably ascertainable.” Ind. Code § 29-1-7-7(e). This issue, however, was not fully adjudicated below: because the trial court found David’s claim untimely under Keenan—which applied the wrong definition of “claims”—it did not reach the question of whether David fits the exception to the Non-claim Statute under Indiana Code section 29-1-7-7. And we find the record on appeal inadequate for us to reach a resolution today, as the parties have not fully briefed whether David is a creditor of the estate or whether he was reasonably ascertainable. Moreover, answering this question may very well require that the parties engage in further discovery, which the trial court had initially limited based on its review of Keenan that we reject. We thus remand to the trial court to determine whether David’s claim in probate should proceed as timely filed.

Posted by Marcia Oddi on August 4, 2015 01:18 PM
Posted to Ind. Sup.Ct. Decisions