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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. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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