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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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