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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.