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Judges examine estate case involving will, self-proving clause

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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.


 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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