ILNews

Defendants in will contest must timely answer

Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

ADVERTISEMENT