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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. 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?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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