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.


Sponsored by
Subscribe to Indiana Lawyer
  1. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  2. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  3. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  4. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon

  5. So men who think they are girls at heart can use the lady's potty? Usually the longer line is for the women's loo, so, the ladies may be the ones to experience temporary gender dysphoria, who knows? Is it ok to joke about his or is that hate? I may need a brainwash too, hey! I may just object to my own comment, later, if I get myself properly "oriented"