Division of deceased couple’s estate will stand despite omission in COA decision

  • 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

Despite a portion of a deceased couple’s will being omitted from a Court of Appeals of Indiana opinion, the appellate court’s original decision does not need to be reversed, the COA held in a Tuesday opinion on rehearing.

In September, the appellate court issued an unpublished opinion in the case of Ashley Victoriano, individually and as Administrator of the Estate of Patrick Barnes v. Estate of Barbara J. Smith, 21A-ES-407. The court’s original ruling upheld the Scott Superior Court’s distribution of the estate of Bobbi and Cecil Smith.

In its September decision, the COA “mistakenly omitted” a portion of the Smiths’ will. Italicized, the omitted portion reads: “We direct that after payment of all our just debts, our property be bequeathed in the manner following: In the event that we pass on at the same time we request that our property be divided as follows: Cecil’s half to be divided between Toby A. and Shannon Smith … .” The will further provided that Bobbi’s half would be divided between Toby Smith, Shannon Smith, Patrick Barnes and Tammy Montana.

“Barnes’s estate argues that, because we misquoted the will, we failed to understand the will’s terms and properly follow the rules of construction in determining Bobbi’s intent, and therefore we should reverse and remand with orders to award each of Bobbi’s children a 1/4 share. This omission does not alter our analysis,” Chief Judge Cale Bradford wrote.

“If anything, the omitted language underscores that, regardless of whether Bobbi and Cecil died at the same time or one predeceased the other, they wanted their estate distributed among the children unequally so that Bobbi and Cecil’s children received 3/8 shares while Bobbi’s children from a previous marriage only received 1/8 shares,” Bradford wrote in the Tuesday opinion on rehearing. 

The panel therefore granted rehearing for the limited purpose of correcting the omission but reaffirmed its original disposition in all other respects.

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 }}