ILNews

Judges examine estate case involving will, self-proving clause

Back to TopCommentsE-mailPrint

Deciding on an issue of first impression regarding the proper execution of a person’s will, the state’s second-highest appeals court has determined the Indiana General Assembly doesn’t want validly signed wills and self-proving clauses to be set aside lightly.

The ruling comes in Estate of Wilgus S. Gibbs, Sr., No. 81A01-1011-ES-560, stemming from an estate dispute out of Union County dating to late 2009. Wilgus S. Gibbs Sr. had his son, Wilgus Gibbs Jr., contact an attorney to have a will prepared quickly because of a progressive lung disease. The son told the lawyer that his father wanted the will to stipulate that Gibbs Jr. would receive the entirety of Gibbs Sr.’s estate and the man’s three granddaughters would be excluded.

Gibbs Sr. signed the will and a self-proving clause at the end of the document, and those witnessing his signature found him to be of sound mind. A day later, he went to the law office and spoke with the lawyer’s secretary who’d witnessed him sign the document and thanked her. He also told her that he’d excluded the granddaughters because he had already given his daughter – their mother – substantial assets before she died in 2006.

The man’s health rapidly deteriorated and he died Jan. 8, 2010, and his son became the personal representative on the estate and executor of the will. Less than a month after Gibbs Sr. died, the granddaughters filed a complaint to contest the will. Both sides filed for summary judgment, and in October 2010, the trial court denied the granddaughters’ motion for summary judgment and granted the motion filed by Gibbs Jr.

On appeal, the granddaughters argued that it’s undisputed that Gibbs Sr. didn’t properly publish his will at the time he signed it, despite the signature of the self-proving clause. They cited testimony from two witnesses who saw Gibbs Sr. sign the document but couldn’t recall him specifically saying he knew it was his will or not.

But the claim of “undisputed” evidence of a failure to publish overlooks the self-providing clause, the appellate panel wrote. The judges noted that Indiana cases have previously explored what happens when inconsistencies exist between a self-proving clause to a will and subsequent witness testimony, and that a fact finder must resolve those discrepancies, but that none of that precedent involved the question of whether the discrepancies could be resolved by summary judgment.

The panel cited Indiana Code 29-1-7-13(c) that says a self-proving clause in a will creates a rebuttable presumption that the document was properly executed, and that publication of the will is one aspect of its execution.

“We conclude that this uncertainty or lack of memory as to the particulars of the will execution ceremony is insufficient as a matter of law to overcome the presumption, provided by the self-proving clause, that the will was properly executed,” Judge Michael Barnes wrote, noting that legislative history and court precedent in 2003 provides that finding.

Looking to appellate caselaw from Illinois in 1958 and 1970, the Indiana court panel found that precedent as persuasive for this state in determining the weight Hoosier lawmakers intended for self-proving clauses to have in the context of will validity.

The granddaughters lost on that claim, as well as their argument that Gibbs Sr. was unduly influenced to sign the will by his son. The appellate judges also determined the granddaughters waived their claim of mistake or fraud because they didn’t cite any relevant legal authority.


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

ADVERTISEMENT