Supreme Court upholds father’s removal as administrator of son’s estate

The Indiana Supreme Court has upheld the removal of a father as the special administrator of his deceased son’s estate, writing that trial courts should hold hearings on special administrator appointments to avoid confusion caused by a “race to the courthouse.”

In July 2017, Orlando Lewis Jr. and his wife, Shante, along with Shante’s mother, were killed after their vehicle was struck by a bus. The only survivor in Lewis’ vehicle was his 4-year-old daughter, K.L., who placed under the guardianship of her aunt, Kathy Calloway.

Three days after the accident, Lewis Jr.’s father, Orlando Lewis Sr., petition the Johnson Superior Court to appoint him as special administrator of his son’s estate for the purpose of pursuing wrongful death damages. The court granted the petition, and Lewis Sr. filed his wrongful death suit in Monroe Circuit Court.

But one day after Lewis Sr. petitioned for appointment, Shana Toliver, the mother of Lewis Jr.’s other child, J.T., petitioned for appointment as special administrator in the Marion Superior Court. Her petition was also granted, and she filed a wrongful death action in Marion County.

Then in August 2017, Tolliver and Calloway individually moved to intervene in the Johnson County proceedings, seeking Lewis Sr.’s removal as special administrator and their appointment in his place. They argued they were the legal guardians of Lewis Jr.’s children, while prior to his son’s death, Lewis Sr. had met his grandchildren only a handful of times.

The Johnson Superior Court agreed to rescind Lewis Sr.’s appointment and appointed Toliver and Calloway as co-special administrators to pursue the wrongful death claim. The Indiana Court of Appeals affirmed in July, and after hearing oral arguments in November, the Supreme Court likewise affirmed Monday in In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr., v. Shana Toliver and Kathy Calloway, 18S-EU-507.

Writing for a unanimous court, Justice Geoffrey Slaughter first held that the trial court could reconsider its appointment of Lewis Sr. because the underlying matter was still pending. The court based that decision on its similar ruling in Estate of Hammar, 847 N.E.2d 960 (Ind. 2006).

Further, again relying on Hammar, the majority found that the reconsideration of Lewis Sr.’s appointment was not an abuse of discretion. Slaughter noted the Hammar court replaced the original special administrator with one who “stood in closer proximity to the estate … .” Likewise here, Toliver and Calloway have “long-term, ongoing relationships” with Lewis Jr.’s beneficiaries.

“After all, the beneficiaries of the wrongful-death claim are not Junior’s parents but his surviving children,” Slaughter wrote. “The court thus gave higher priority to the rights of these children’s parents or guardians than to their grandparents. And it defended that determination by finding that neither grandparent was particularly close to either grandchild before the accident.” 

Noting the appointment petitions in this case were filed just one day apart, the justices addressed the “race to the courthouse” often present in special administrator appointments by noting the applicable statute, Indiana Code section 29-1-10-15, requires no notice to beneficiaries or other interested parties before a special administrator is appointed, nor does it afford a right of appeal. Even so, the justices wrote that judges considering motions for appointment should provide notice to beneficiaries or their counsel, as identified in the motions, and hold a hearing.

“The hearing is to determine whether the movant would be a suitable special administrator and to permit other interested persons the opportunity to object or to file their own requests for appointment,” Slaughter wrote. “If the motion does not identify a potential beneficiary or legal representative, it is more likely the trial court will have abused its discretion if it later refuses to rescind its appointment should that person, unnamed and unidentified in the initial motion, later come forward and assert an interest in the appointment.

“Though not required by Trial Rule 53.4, the trial court should promptly (within five days) schedule a hearing and provide notice when someone moves to reconsider the appointment of a special administrator,” he concluded.

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