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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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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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