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Man had 3 months to bring claim to enforce contract, court rules

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A son who sought to challenge his stepmother’s decision to revoke the will she made with his father had to bring his challenge within three months of the will being admitted to probate, not nine months as he claimed, the Indiana Court of Appeals ruled.

David Markey was the only child of John and Betty Markey. When his mother died, her assets went to her husband. He later married Frances Markey, and they executed a contract in 1998 to make mutual wills. Half of their estate would go to Frances Markey’s granddaughter, the other half would go to David Markey. The contract also said the wills would not be revoked, and if they were, David Markey could bring an action at law or in equity seeking performance. Frances’ adult children, Stephen Routson and Madonna Reda, were not aware of this contract.

After John Markey died, Frances Markey inherited all of his assets and then revoked her will. She died in July 2012 and her estate was opened in August 2012. David Markey, who claimed he didn’t learn she had died until April 2013, brought his action to enforce the terms of the contract that month – eight months after the will was admitted to probate.

Reda argued that the action was time barred because it was filed more than three months after the will was admitted to probate; David Markey argued that he had timely filed his action within nine months of Frances Markey’s death because he was a “reasonably ascertainable creditor” under I.C. 29-1-7-7(d)(2).

The trial court, citing Kennan v. Butler, 869 N.E. 2d 1284 (Ind. Ct. App. 2007), ruled the action to enforce a contract to make a will was not a “claim” under I.C. 29-1-14-1 of the Probate Code. It pointed to a footnote in the ruling that said “for timely administration of an estate, a breach of contract to make a will action should be similarly limited. Where the action is challenging the distribution pursuant to a probated will, the petition must be filed within three months of the order admitting the will to probate.”

In David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative under the Last Will and Testament of Frances S. Markey, Deceased; Stephen L. Routson, et al., the COA agreed that the footnote in Keenan is directly applicable in a case such as David Markey’s, so it correctly determined that the three-month limitation period for such actions suggested in the footnote applies to David Markey’s action.

The judges rejected his claim that the three-month limitation period for will contest actions would violate his due process rights.

 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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