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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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