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Defendants in will contest must timely answer

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In an issue of first impression, the Indiana Court of Appeals has held that a will contest is a civil action and a defendant in this type of action is required to file an answer or plead to a complaint as provided by the state’s trial rules.

Siblings Rod and Marshall Avery appealed the default judgment against them in a will contest initiated by their sister Trina Avery. Trina served the brothers with summonses and copies of the complaint with Trial Rule 4. Neither brother appeared, answered, or pleaded in the will contest, and Trina filed a motion for default judgment. The brothers filed a motion to dismiss, claiming they didn’t have to file an answer. The trial court entered default judgment against them.

In Rod L. Avery, et al. v. Trina R. Avery, No. 49A05-1004-PL-320, the appellate court had to decide whether interested parties to a will contest are required to file an answer to the complaint. The Probate Code is silent on this issue, but the judges looked to Robinson v. Estate of Hardin, 587 N.E.2d 683, 685 (Ind. 1992), which held that Trial Rules 4 through 4.16 are applicable to will contests as well as Trial Rule 7(A).

“Again, a will contest is separate from the administration of an estate, and the executor and ‘all other persons beneficially interested in the will’ are made defendants in a will contest. See I.C. § 29-1-7-17,” wrote Judge Edward Najam. “Accordingly, we hold that, as with any civil complaint, a defendant in a will contest is required to file an answer or otherwise plead within the time provided under Trial Rule 6.”

The judges declined to hold that Indiana Code Section 29-1-1-10 applies to probate proceedings related to will contests. That section applies to proceedings related to the administration of a decedent’s estate, wrote Judge Najam.
 

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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