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. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

ADVERTISEMENT