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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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