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Nephews' appeal over estate dispute dismissed

May 25, 2012

Even though the trial court said its order regarding a petition to set aside a family settlement agreement was final and appealable, it was not, so the Indiana Court of Appeals dismissed an appeal sua sponte.

Mark and David Shuler, co-personal representatives of the estate of Ruby Shuler Blankenbaker Botkins and nephews of Botkins, appealed the denial of their motion to set aside a family settlement agreement they entered into with Botkins’ surviving husband after Botkins’ death. The agreement said the Shulers would act as co-representatives of the estate and administer it in a manner that follows the directives of a will Botkins created in 1992.

Several months later, while the estate was still open, the Shulers found another will executed by Botkins in 1987. They filed a petition to set aside the agreement and admit the 1987 will to probate, but the husband objected. The Shulers sought interlocutory appeal, which the COA denied, and then asked the trial court to make its April 12, 2011, denial of their petition a final judgment. The trial court entered the purported final order on Sept. 2.

 In In Re the Estate of Ruby Shuler Blankenbaker Botkins, Deceased; Mark Allen Shuler and David Lee Shuler, co-personal representatives v. Estate of George Botkins and Larry Botkins, personal rep., No. 22A05-1109-ES-481, the COA dismissed, finding the trial court’s order didn’t comply with Trial Rule 54(B). In addition, orders issued by a probate court aren’t final until the estate is closed. The order from which the Shulers appeal is also not an appealable interlocutory order, so the appellate court ruled it does not have subject matter jurisdiction to rule on the appeal.

 

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