COA: Sisters’ estate tort claims against brother may proceed

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The Indiana Court of Appeals affirmed the denial of a son’s motion to dismiss when it found his sisters’ tort claims against him arising from a dispute over inheritance could move forward in the trial court.

Following the death of their respective parents, Melvin and Rebecca Dillman, Gerald Scott and Rhonda Vance served as co-executors on Rebecca’s probate estate.

During the probate proceedings, Rhonda and her two sisters came to believe Gerald and his two brothers had induced Rebecca to transfer assets to the sons at below fair market value. The daughters believed the transferred assets included “real estate holdings, a thriving hardware business, a funeral home and adjoining land, a farm with eighty-three acres, two boats, two trailers, automobiles, and jewelry.”

Because the sons were granted powers of attorney by Rebecca, the daughters argued that the assets available to be distributed to the six children after Rebecca’s death were reduced by the sons.

In June 2016, all three daughters filed sued Gerald — two individually for tortious interference with inheritance and tortious interference with contract — and another individually, against him in his role as executor of the Rebecca’s estate. The trial court ultimately dismissed Gerald in his capacity as executor and denied his motion for dismissal of the tort claims.

On appeal, Gerald argued the trial court erred when it denied his motion to dismiss pursuant to Indiana Trial Rule 12(B)(6) because the daughters failed to state a claim that could be addressed in the trial court.

Specifically, Gerald asserted their claims were either against the estate or on behalf of the estate and therefore must be brought in the estate in probate court and not as separate tort claims in trial court.

The appellate court disagreed, finding that the daughters did not have a remedy in the estate because their claims were not filed within nine months of the death of Rebecca. 

It also found that the assets no longer in Rebecca’s estate to be distributed as the will specified were not apparent until the accounting was filed, which occurred after the probate time limits had lapsed. Therefore, the tort claims could proceed to the trial court.

“As it pertains to inheritance, we have acknowledged that Indiana recognizes a party may make a separate tort claim, provided they cannot acquire adequate relief in the probate court,” Judge Melissa May wrote. “Here, we have just that situation — Daughters cannot obtain adequate relief within the Estate because they were unaware of the loss of assets until after the probate code time limits had lapsed. It is against public policy to extend the probate court time limits.

“Therefore, Daughters have rightfully filed their claims as a separate tort action and the trial court did not err when it denied Gerald’s motion to dismiss Daughters’ Tort Claims.  Accordingly, we affirm.”

The case is Gerald F. Scott v. Cheryl Carrico (Dillman), Carla Cook (Dillman), and Rhonda K. Vance, 59A01-1712-CT-2878.


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