ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

ADVERTISEMENT