`

Estate battle remanded to trial court to determine timeliness

August 4, 2015

An heir was successful in asserting he had a claim to his father’s estate but has more work to convince the courts he filed his claim in a timely manner.

David Markey sued his stepmother’s estate and his two stepsiblings to enforce the contract his father and stepmother had signed regarding the division of their estate. Under the terms of the original agreement, the couple’s property would be divided between Markey and his stepmother’s granddaughter. Also, the contract mandated the wills could not be revoked or altered.

However, after Markey’s father died, his stepmother rewrote her will, leaving everything to her two children. She died in July 2012 and her son, who was named personal representative of her will, made no effort to notify Markey. Instead, Markey did not learn of his stepmother’s death and subsequent will until April 2013.

Exactly nine months after the stepmother’s death, Markey filed his lawsuit.

Both the Wayne Superior Court and the Indiana Court of Appeals found Markey was time-barred from filing his claim. Citing Keenan v. Butler, 869 N.E.2d 1284, 1289 (Ind. Ct. App. 2007), trans. not sought, the courts held Markey had only three months to act.

Markey argued the lower courts had improperly relied on the common law definition of “claim” rather than the more recent statutory definition enacted by the Legislature. As such, he held he had nine months to file.

He asserted his claim for breach of contract to make and not revoke mutual wills constitutes a “claim” as defined by Indiana’s Probate Code. Also, he maintained he was a reasonably ascertainable creditor of the estate entitled to actual notice which he did not receive.

The Indiana Supreme Court agreed, partly, and reversed the summary judgment in favor of the defendants 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, et al., 89S05-1412-ES-749.

In reviewing Indiana Code 29-1-7-7(d) (Supp. 2014), the justices noted that to satisfy the statute, the plaintiff must have a claim and be a reasonably ascertainable creditor. They found under the plain language of the statutory definition, Markey’s claim was governed by the probate code.

But, the Supreme Court held off finding that Markey had timely filed. The justices noted that the issue had not been fully adjudicated and the parties had not been fully briefed as to whether Markey was a creditor of the estate or whether he was reasonably ascertainable. Likely, the Supreme Court held, answering these questions would require further discovery.

The Supreme Court remanded to determine whether Markey’s claim in probate should proceed as timely filed.

 

ADVERTISEMENT

Recent Articles by Marilyn Odendahl