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Court: Man properly executed will, not under undue influence

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The Indiana Court of Appeals today affirmed a jury’s decision that upheld a will after the decedent’s children questioned whether the will was executed properly and whether the trial court erred in rejecting a jury instruction regarding undue influence.

In James D. Callaway, Jason M. Callaway, and Greg R. Callaway v. Hannah Callaway, Truman Callaway, and Debra J. Mathew, No. 28A04-0908-CV-467, James Callaway, Jason Callaway, and Greg Callaway alleged that Debra Mathew had exerted undue influence on their father. The brothers had appealed whether the will was published in accordance with Indiana Code Section 29-1-5-3, whether it was executed and witnessed in accordance with that section, and whether the trial court abused its discretion when it rejected the sons’ proposed jury instruction.

John Callaway, who lived on a 40-acre farm in Greene County from 1995 to 2008, met Mathew in 1999. Though they spent much of their time together, they did maintain their separate residences.

On Sept. 27, 2007, John drove 100 miles to Noblesville to visit Patricia Ogborn, a notary public he’d known for a long time, about creating a last will and testament. Ogborn’s daughter, Christeen, and grandson, Jeremy, came to the house and were asked to sign the document as witnesses. Because Christeen and Jeremy knew Ogborn sometimes helped people with their wills, both had asked John prior to signing as witnesses if the signature on the document was John’s; he affirmed it was his signature.

John, who had a history of heavy drinking, was diagnosed with alcoholic liver disease in April 2008. While he was inpatient, his sons petitioned for guardianship. When he returned home, Debra coordinated his hospice and home therapy visits, and either stayed with him or arranged for someone to be with him around the clock. He died June 9, 2008.

John’s attorney, who was faxed a copy of the will, contacted the funeral home director and informed him that John had a will. The funeral home director in turn told the sons that John had a will.

Despite that, the sons filed a petition June 11, 2008, seeking Jim’s appointment as the personal representative of John’s estate, alleging that he’d died intestate. They didn’t notify Debra, who filed a petition that same day for probate, appointment of personal representative, and unsupervised administration of John’s estate. John’s attorney learned of the sons’ petition and the next day filed a verified petition for order ex parte, advising the court that John had died testate and that the funeral home director had informed the sons of that fact before they had filed their petition. As a result, the court vacated the order appointing Jim as administrator of the estate and revoked the letters of administration.

Litigation commenced regarding various issues.

Following the close of evidence at the jury trial, the court refused to give the sons’ proposed final jury instruction regarding the presumption of undue influence. The jury decided in Mathew’s favor, and the trial court denied the sons’ motion for judgment on the evidence under Trial Rule 50.4, which led to this appeal.

The appellate court wrote the sons’ evidence that the will was not proper was insufficient: the attestation in the will and Christeen and Jeremy’s Proofs of Will were sufficient evidence that John properly published the will.

While the instruction did correctly state the law on the presumption of undue influence in cases where a confidential relationship exists as a matter of law, the court found a relationship of trust and confidence as a matter of law does not apply in this situation. However, wrote Judge Edward W. Najam Jr., a question remained about whether John and Mathew’s relationship was one of trust and confidence on the case’s facts.

In refusing to give the instruction, the trial court had noted, “‘the nature of the relationship between Ms. Mathew and [John] was so akin to a spouse-like relationship[,] that that analogy is obvious[,] and based upon that I think that rule of law applies in this particular case.’ Transcript at 1019. … Although we agree with the trial court that the relationship between Debra and John was more analogous to a spousal relationship than to a fiduciary relationship, we agree with the Sons that there is no authority in Indiana for ‘extending’ the rule of law applied in Womack v. Womack, 622 N.E.2d 481, 483 (Ind. 1993), and Hamilton v. Hamilton, 858 N.E.2d 1032, 1037 (Ind. Ct. App. 2006), trans. denied, to unmarried couples.”

In those cases, the Court of Appeals held the presumption of undue influence did not apply to transactions between spouses. Womack, 622 N.E.2d at 483, Hamilton, 858 N.E.2d at 1037. But the appellate court noted the trial court’s statements could be interpreted to mean the rule of Womack and Hamilton applies in this case, so the trial court did err.

Regarding the sons’ argument that Mathew and John “were in a relationship of trust and confidence on the facts of this case, the proposed jury instruction should have defined the term. As such, the instruction was incomplete and potentially confusing for the jury,” Judge Najam wrote.

He further noted that “a proper instruction would not have included a presumption of undue influence. See [Carlson v. Warren, 878 N.E.2d 844 (Ind. Ct. App. 2007)], 878 N.E.2d at 852 (holding that, instead of a presumption of undue influence, a party must prove both a confidential relationship on the facts and that the parties did not deal on equal terms). Thus, again, the trial court did not err when it refused to give the instruction.”

The panel also noted it does not condone the “casual manner in which the will was executed and witnessed in this case.” It went on to say the evidence supports that John’s conduct was deliberate, that it was his intent to make a will, and that everyone present knew his purpose for being there.
 

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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