Appellate court declines to issue ‘advisory’ opinion in estate dispute

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The Indiana Court of Appeals on Thursday granted rehearing in an estate case to reiterate that it does not issue advisory opinions.

“Kenneth J. Schaefer files a petition for rehearing, asking this court to interpret Indiana Code section 29-1-17-3, which governs abatement of estate assets should the estate be insolvent. As the trial court did not rule on that issue in the order appealed to our court, any opinion we would render would be premature and purely advisory in nature,” Judge Melissa May wrote for the appellate court.

In Schaefer’s case, he inherited the family business from his father following his death. It was later ordered that Schaefer make his assets available for an appraisal after the Indiana Court of Appeals determined he may have received a “gift” subject to an abatement.

The Spencer Circuit Court had entered declaratory judgment in April 2020, finding that the language in Section D(2) of the third codicil to his father’s will was not an option to purchase, so the assets were “potentially” subject to abatement and the personal representatives could conduct discovery of the property. But the proceedings were stayed pending appeal, and the COA partially reversed. The case was then remanded for further proceedings.

In an opinion on rehearing, the COA wrote that it is “well-established” that it does not issue advisory opinions. It therefore granted rehearing to clarify its reason for declining Schaefer’s request to review the issue not decided by the trial court.

“We affirm our original opinion in all other respects,” May concluded.

The case is Kenneth J. Schaefer v. Estate of Cletus P. Schaefer, Deceased, 20A-ES-1007.

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