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.