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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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