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High court rules on estate issue

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The Indiana Supreme Court ruled on a matter of first impression today regarding the disposition of an entire estate during life or death.

In the Matter of the Guardianship of E.N., Adult,No. 88S01-0703-CV-121, deals with the issue of whether the guardianship estate planning statute authorizes dispositions of a protected person's entire estate, not just "excess" assets, as defined in the statute.

In this case, E.N. married and had two children - Shirley and Marvin. He executed a will in 1983 and another in 1992 naming his wife, Shirley, Marvin and their children as beneficiaries.

E.N.'s wife filed for divorce in 1997, and E.N. then lived with his two brothers. That year, and again in 1999, E.N. drafted two more wills, this time leaving his entire estate to his brothers and specifically disinheriting his children.

E.N. suffered from Alzheimer's disease, and the court named his daughter and son as co-guardians. In 1999, E.N. executed a new will, naming his children as sole beneficiaries of his estate; he testified he did not want his brothers to be beneficiaries.

In 2002, Shirley petitioned the guardianship court to implement an estate plan on E.N.'s behalf under Indiana Code 29-3-9-4, the guardianship estate planning statute. The plan was to move everything to a revocable trust with Marvin as trustee. E.N.'s brothers objected to the plan.

The guardianship court ruled in favor of Shirley, ruling E.N. was not competent to make the 1997 or 1999 wills, and it was reasonable E.N. would want his children to receive the bulk of the estate, with a small portion going to his brothers.

After E.N. died in 2004, his children petitioned the court to probate his 1999 will; his brothers objected, citing the guardianship court's ruling that will was invalid. Later, the children petitioned in probate court to probate the 1983 will.

The guardianship court terminated the guardianship "in all respects except as to those matters presently on appeal" in 2005. The Court of Appeals affirmed the guardianship court's approval of the estate plan.

The Supreme Court today reversed the guardianship court's October 2003 order approving the guardian's modified estate plan. For several reasons, Justice Theodore Boehm wrote that the Indiana legislature didn't authorize transfers of someone's entire estate during life or death. The statute in question allows a guardian to dispose of "excess" principal or income, but E.N.'s trust disposed of all of his assets. If the legislature had intended to authorize dispositions at death, it would have authorized wills, trusts, or other estate planning tools to allow it.

Indiana Code 29-1-5-8 provides that with the exception of revocation upon divorce, no written will or any part of it can be changed or revoked because of the condition of the testator. The estate plan effectively revoked E.N.'s valid will, wrote Justice Boehm.

"The legislature is certainly free to authorize guardians to dispose of all property at the protected person's death, but as of now it has not done so," he wrote.

Because the estate plan was not authorized by the guardianship estate planning statute, it must be disapproved, regardless of the validity of E.N.'s prior wills. The validity remains a matter for the probate court to consider under the will contest statutes. The case is remanded with instructions to close the guardianship by reason of E.N.'s death and the disposition of his estate remains a matter for probate court to decide.
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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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