Appeals court reverses ‘draconian’ dismissal of will challenge

  • Print
Listen to this story

Subscriber Benefit

As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
This audio file is brought to you by
Loading audio file, please wait.
  • 0.25
  • 0.50
  • 0.75
  • 1.00
  • 1.25
  • 1.50
  • 1.75
  • 2.00

Calling a trial court’s dismissal of a relative’s petition to contest a will “draconian,” the Indiana Court of Appeals on Friday reinstated the petition and sent the case back to Lake County to be heard in the superior rather than circuit court.

James Witham is the cousin and claims in court documents to be the surviving relative of Gerald W. Rogers, who committed suicide in December 2017. Witham asserts in his petition to contest Rogers’ will that Rogers’ former paid caregivers and others may have exerted undue influence over Rogers, who executed several trust amendments, including at least two in the months before he died. Michael Steffan was named a beneficiary and successor trustee, according to Witham’s petition.

Realizing that Witham had filed his petition in the wrong court, the Lake Superior Court transferred the action to the Lake Superior Probate Commissioner, who, after a hearing, dismissed the matter with prejudice because of the filing mistake. Witham then moved for this interlocutory appeal, arguing that “(t)he court in its order denies Witham the right to proceed to the merits of his will contest due to the fact that the Witham will contest petition was filed in Crown Point instead of Hammond.”

The Indiana Court of Appeals agreed Friday in James Witham v. Michael G. Steffan, as Personal Representative of the Estate of Gerald W. Rogers, et al., 18A-TR-2914. In a footnote, Judge James Baker wrote for the panel, “we find it draconian to dismiss Witham’s suit with prejudice under these circumstances.”

The trial court dismissed Witham’s petition for failure to state a claim upon which relief can be granted, but the COA ruled that this, too, was erroneous.

“Witham argues that the trial court erred because his petition to contest a will was not wrongfully filed and that even if it was wrongfully filed, his case should have been transferred rather than dismissed with prejudice,” Baker wrote. “We find that the trial court should have treated the matter as a motion to dismiss for incorrect venue and transferred it to the appropriate court. Accordingly, we reverse and remand with instructions … to transfer this cause to the Superior Court for further proceedings.”

While the panel noted it was clear that Witham should have filed in Superior Court, “a transfer to that court is a simple solution that requires little, if any, procedural movement. This is especially true considering the case had already been transferred to the Superior Court.

“Witham made a simple mistake by filing in the Circuit Court instead of in the Superior Court. We find this to be a mistake in venue that mandates immediate transfer rather than dismissal with prejudice,” the panel concluded.

Please enable JavaScript to view this content.

{{ articles_remaining }}
Free {{ article_text }} Remaining
{{ articles_remaining }}
Free {{ article_text }} Remaining Article limit resets on
{{ count_down }}