ILNews

Judges examine estate case involving will, self-proving clause

Back to TopCommentsE-mailPrintBookmark and Share

Deciding on an issue of first impression regarding the proper execution of a person’s will, the state’s second-highest appeals court has determined the Indiana General Assembly doesn’t want validly signed wills and self-proving clauses to be set aside lightly.

The ruling comes in Estate of Wilgus S. Gibbs, Sr., No. 81A01-1011-ES-560, stemming from an estate dispute out of Union County dating to late 2009. Wilgus S. Gibbs Sr. had his son, Wilgus Gibbs Jr., contact an attorney to have a will prepared quickly because of a progressive lung disease. The son told the lawyer that his father wanted the will to stipulate that Gibbs Jr. would receive the entirety of Gibbs Sr.’s estate and the man’s three granddaughters would be excluded.

Gibbs Sr. signed the will and a self-proving clause at the end of the document, and those witnessing his signature found him to be of sound mind. A day later, he went to the law office and spoke with the lawyer’s secretary who’d witnessed him sign the document and thanked her. He also told her that he’d excluded the granddaughters because he had already given his daughter – their mother – substantial assets before she died in 2006.

The man’s health rapidly deteriorated and he died Jan. 8, 2010, and his son became the personal representative on the estate and executor of the will. Less than a month after Gibbs Sr. died, the granddaughters filed a complaint to contest the will. Both sides filed for summary judgment, and in October 2010, the trial court denied the granddaughters’ motion for summary judgment and granted the motion filed by Gibbs Jr.

On appeal, the granddaughters argued that it’s undisputed that Gibbs Sr. didn’t properly publish his will at the time he signed it, despite the signature of the self-proving clause. They cited testimony from two witnesses who saw Gibbs Sr. sign the document but couldn’t recall him specifically saying he knew it was his will or not.

But the claim of “undisputed” evidence of a failure to publish overlooks the self-providing clause, the appellate panel wrote. The judges noted that Indiana cases have previously explored what happens when inconsistencies exist between a self-proving clause to a will and subsequent witness testimony, and that a fact finder must resolve those discrepancies, but that none of that precedent involved the question of whether the discrepancies could be resolved by summary judgment.

The panel cited Indiana Code 29-1-7-13(c) that says a self-proving clause in a will creates a rebuttable presumption that the document was properly executed, and that publication of the will is one aspect of its execution.

“We conclude that this uncertainty or lack of memory as to the particulars of the will execution ceremony is insufficient as a matter of law to overcome the presumption, provided by the self-proving clause, that the will was properly executed,” Judge Michael Barnes wrote, noting that legislative history and court precedent in 2003 provides that finding.

Looking to appellate caselaw from Illinois in 1958 and 1970, the Indiana court panel found that precedent as persuasive for this state in determining the weight Hoosier lawmakers intended for self-proving clauses to have in the context of will validity.

The granddaughters lost on that claim, as well as their argument that Gibbs Sr. was unduly influenced to sign the will by his son. The appellate judges also determined the granddaughters waived their claim of mistake or fraud because they didn’t cite any relevant legal authority.


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

ADVERTISEMENT