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COA: No presumption of undue influence

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A 2005 amendment to Indiana Code sets aside the common law presumption of undue influence with respect to certain transactions benefiting an attorney in fact, the Indiana Court of Appeals ruled today on an issue of first impression.

The appellate judges had to decide in Gregory D. Compton, et al. v. First National Bank of Monterey, as personal representative of the estate of Stephen Craig Compton, et al., No. 66A03-0906-CV-249, if in light of a 2005 amendment to Indiana Code Section 30-5-9-2(b), the common law presumption of undue influence doesn't apply to a transaction where the principal takes action, the power of attorney is unused, and the attorney in fact benefits.

Stephen Compton's will in 2005 provided for his six children in varying degrees. His son Gregory was going to get 150 acres of his farmland. His power of attorney named his son Scott as his attorney in fact.

In 2008, Stephen became ill and was hospitalized with end-stage renal disease. He entered into a contract with Scott and his wife to buy the 150 acres willed to Gregory. Stephen also executed a contract to purchase Scott's home and put the house in his name. The sales hadn't been completed because of Stephen's death.

Monterey Bank asked the trial court to allow it to complete the contracts, which the trial court approved. Stephen's children Gregory, Sara, and Megan had objected and appealed the order.

The children argued the trial court should have applied the common law presumption of undue influence on the transactions, and that if applied, Scott failed to rebut it. Scott and the bank argued the 2005 amendment to I.C. 30-5-9-2(b) ended the common law presumption of undue influence.

There is scant caselaw on the statute in general and none on the issue since the amendment took effect. The Court of Appeals relied on Henry's Indiana Probate Law and Practice, which said 2(b) does abrogate the common law presumption of undue influence.

"A presumption of undue influence is now conditioned upon the attorney in fact's actual use of the power of attorney to effect the questioned transaction for his or her benefit," wrote Judge Nancy Vaidik. "The benefiting attorney in fact is freed from the presumption of undue influence so long as the power of attorney is unused in the questioned transaction."

The appellate court also found Stephen, as the principal, took action in the case by signing the contracts, previously inquiring into selling his farmland before he was hospitalized, and asking a bank to value the farm real estate. The children also failed to show undue influence on Scott's part by showing the imposition of his power to deprive his father of the exercise of free will, the judge continued. The evidence supports Stephen acted under his free will, so the appellate court affirmed the grant of the bank's petition for completion of the contracts.

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  1. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  2. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  3. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

  4. I've been denied I appeal court date took a year my court date was Nov 9,2016 and have not received a answer yet

  5. Warsaw indiana dcs lying on our case. We already proved that in our first and most recent court appearance i need people to contact me who have evidence of dcs malpractice please email or facebook nathaniel hollett thank you

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