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.