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High court rules on estate issue

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The Indiana Supreme Court ruled on a matter of first impression today regarding the disposition of an entire estate during life or death.

In the Matter of the Guardianship of E.N., Adult,No. 88S01-0703-CV-121, deals with the issue of whether the guardianship estate planning statute authorizes dispositions of a protected person's entire estate, not just "excess" assets, as defined in the statute.

In this case, E.N. married and had two children - Shirley and Marvin. He executed a will in 1983 and another in 1992 naming his wife, Shirley, Marvin and their children as beneficiaries.

E.N.'s wife filed for divorce in 1997, and E.N. then lived with his two brothers. That year, and again in 1999, E.N. drafted two more wills, this time leaving his entire estate to his brothers and specifically disinheriting his children.

E.N. suffered from Alzheimer's disease, and the court named his daughter and son as co-guardians. In 1999, E.N. executed a new will, naming his children as sole beneficiaries of his estate; he testified he did not want his brothers to be beneficiaries.

In 2002, Shirley petitioned the guardianship court to implement an estate plan on E.N.'s behalf under Indiana Code 29-3-9-4, the guardianship estate planning statute. The plan was to move everything to a revocable trust with Marvin as trustee. E.N.'s brothers objected to the plan.

The guardianship court ruled in favor of Shirley, ruling E.N. was not competent to make the 1997 or 1999 wills, and it was reasonable E.N. would want his children to receive the bulk of the estate, with a small portion going to his brothers.

After E.N. died in 2004, his children petitioned the court to probate his 1999 will; his brothers objected, citing the guardianship court's ruling that will was invalid. Later, the children petitioned in probate court to probate the 1983 will.

The guardianship court terminated the guardianship "in all respects except as to those matters presently on appeal" in 2005. The Court of Appeals affirmed the guardianship court's approval of the estate plan.

The Supreme Court today reversed the guardianship court's October 2003 order approving the guardian's modified estate plan. For several reasons, Justice Theodore Boehm wrote that the Indiana legislature didn't authorize transfers of someone's entire estate during life or death. The statute in question allows a guardian to dispose of "excess" principal or income, but E.N.'s trust disposed of all of his assets. If the legislature had intended to authorize dispositions at death, it would have authorized wills, trusts, or other estate planning tools to allow it.

Indiana Code 29-1-5-8 provides that with the exception of revocation upon divorce, no written will or any part of it can be changed or revoked because of the condition of the testator. The estate plan effectively revoked E.N.'s valid will, wrote Justice Boehm.

"The legislature is certainly free to authorize guardians to dispose of all property at the protected person's death, but as of now it has not done so," he wrote.

Because the estate plan was not authorized by the guardianship estate planning statute, it must be disapproved, regardless of the validity of E.N.'s prior wills. The validity remains a matter for the probate court to consider under the will contest statutes. The case is remanded with instructions to close the guardianship by reason of E.N.'s death and the disposition of his estate remains a matter for probate court to decide.
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  1. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

  3. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

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