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Judges examine estate case involving will, self-proving clause

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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.


 

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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