In Re the Supervised Estate of Dorothy M. Hall (Decedent), Doloris Tilly v. Jeff Hall and Doris Andres

FILED May 27 2020, 9:08 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern JEFF HALL Anderson, Indiana Crystal G. Rowe Kristi L. Fox Katherine E. Tapp Richard R. Fox Kightlinger & Gray, LLP New Albany, Indiana New Albany, Indiana ATTORNEY FOR APPELLEE DORIS ANDRES Rachele L. Cummins Jeffersonville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Supervised Estate of May 27, 2020 Dorothy M. Hall (Decedent), Court of Appeals Case No. 19A-ES-1450 Doloris Tilly, Appeal from the Floyd Circuit Appellant, Court v. The Honorable Joseph P. Weber, Special Judge Jeff Hall and Doris Andres, Trial Court Cause No. 22C01-1411-ES-163 Appellees.

Brown, Judge. Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 1 of 19 [1] Doloris Tilly appeals the trial court’s interlocutory order of April 26, 2019, in

the Supervised Estate of Dorothy M. Hall. We affirm.

Facts and Procedural History [2] In 1987, Frank Hall (“Frank”) and Dorothy Hall (“Dorothy”) owned certain

real property on Old Vincennes Road in Floyds Knobs, Indiana. 1 Jeff Hall

(“Hall”) was Frank’s son and Dorothy’s stepson. Frank passed away in May

1987, and Dorothy became the sole owner of the Old Vincennes Road property

and lived there. According to Hall, he and his father Frank raised cattle on the

property and, after his father passed away, he continued to raise cattle and

maintained the property and barn. Dorothy had two daughters, Doris Andres

and Tilly. [3] On September 3, 2008, Dorothy executed a Last Will and Testament leaving

the approximately eight-acre property on Old Vincennes Road to Hall and

leaving the residue of her estate to Tilly. The will stated that Andres had

received certain money from a joint inter vivos account and thus no provision

was made for her. It named Tilly’s husband, Thomas Tilly (“Thomas”), as the

executor of the estate and Hall as an alternate executor. Dorothy also signed a

power of attorney appointing Tilly and Thomas as her attorneys in fact.

1 According to Jeff Hall, his father Frank and his mother purchased real property in 1955, his parents were later divorced, Frank married Dorothy in 1963, and the property was placed in Frank and Dorothy’s names in 1971. Frank and Dorothy conveyed about three acres of the property to Hall’s brother and about three acres of it to Hall, and retained and lived on the remaining property of approximately eight acres.

Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 2 of 19 [4] On March 5, 2010, Dorothy signed a quitclaim deed conveying the Old

Vincennes Road property to Tilly. 2 Dorothy passed away on October 25, 2014.

On November 3, 2014, Andres filed a petition for supervised administration

requesting that she be appointed as the personal representative of the estate. [5] Hall received a letter dated November 4, 2014, from Tilly and Thomas’s

counsel addressed to him and Andres stating: Dorothy had transferred her real

estate to Tilly on March 5, 2010, pursuant to enclosed deeds; Dorothy’s other

assets were held jointly with Tilly and passed directly to her as a matter of law;

pursuant to Dorothy’s September 3, 2008 will, all of her tangible property

passed to Tilly; and thus it was not necessary to open a probate estate for

Dorothy unless additional assets were discovered. [6] On November 7, 2014, Tilly filed an objection stating that she lived with

Dorothy for several years before her death and was familiar with Dorothy’s

assets and that Dorothy had executed a will naming Thomas as the personal

representative of her estate. On November 24, 2014, counsel for Hall filed an

appearance. On December 2, 2014, the court issued an order appointing

Thomas as the personal representative of Dorothy’s estate. [7] On December 10, 2014, Andres filed a “Verified Petition to Contest Will”

requesting that the purported will be declared invalid and alleging that Dorothy

was of unsound mind and she was under the undue influence of Tilly and

2 On the same day, Dorothy signed a quitclaim deed conveying a property on Ekin Avenue to Tilly.

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Thomas. The petition stated Hall and Tilly were joined in the action because

they were beneficially interested in the purported will as devisees. On

December 17, 2014, Andres filed a Verified Petition to Set Aside Deeds which

alleged: Dorothy previously owned the Old Vincennes Road parcel and a rental

home on Ekin Avenue; Dorothy executed quitclaim deeds on March 5, 2010,

conveying both parcels to Tilly; and Dorothy was of unsound mind, suffering

from dementia, and under undue influence and duress at the time of the

execution of the deeds. She requested the deeds be declared invalid and the real

estate be deemed part of the estate. [8] On January 2, 2015, Thomas filed a motion to resign as personal representative

and to appoint a special administrator which stated Tilly, Andres, and Hall

were all interested parties and that they should equally share the fees of the

special administrator. The motion stated Tilly and Thomas resided in the

residence at the Old Vincennes Road property and requested an order that they

could continue to live there rent free. [9] On January 9, 2015, the court entered an Agreed Order Appointing Special

Administrator. The Agreed Order defined Tilly, Andres, and Hall as

“Interested Parties,” appointed a special administrator, and ordered that the

Interested Parties share equally in the fees of the special administrator and that

Tilly and Thomas could continue to reside rent free in the residence and would

pay all expenses for maintenance, insurance, utilities, and taxes while residing

there. The Agreed Order was signed by counsel for Tilly, Andres, and Hall.

Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 4 of 19 [10] An entry in the chronological case summary dated November 6, 2015, states

that a conference was held at which counsel for Andres, Tilly, and Hall were

present and that Tilly was authorized to replace the HVAC system in the home

on Old Vincennes Road and could seek reimbursement from the estate. A

bench trial was eventually scheduled for February 6, 2017. On January 20,

2017, Hall filed a motion for continuance stating he had not received certain

requested discovery. Also on that date, Hall and Andres filed a joint motion for

mediation. Tilly and Thomas objected to the motions. [11] On January 31, 2017, the court issued an order stating it held a telephonic

conference with all counsel participating, counsel for Hall and Andres proposed

that their respective clients pay for the cost of mediation, and the requested

discovery had relevance to the issues to be heard at trial and was apparently

available from non-parties. The court granted Hall’s motion to continue and

found that the validity of Dorothy’s will and her deeds were in dispute and that

“[t]he interests of all three (3) parties are very much at stake in this case and

such interests [are] substantial.” Appellant’s Appendix Volume II at 169. The

court ordered that the parties participate in mediation, that Hall and Andres

pay the cost of mediation, that supplemental discovery requests may be made

until February 20, 2017, and that responses were due within twenty days

thereafter. [12] On March 14, 2017, a mediator’s report was filed stating that mediation

occurred on March 9, 2017, that all parties were present and represented by

counsel, and that mediation was unsuccessful. On March 15, 2017, Hall’s

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counsel filed a motion for extension of time stating that Tilly had served a

request for admissions on or about February 21, 2017, while he was out of the

state, the answers were due, and he was requesting until April 1, 2017 to file

responses. [13] On March 17, 2017, Tilly and Andres filed a Motion to Withdraw Petitions to

Contest Will and Set Aside Deeds and Joint Motion to Dismiss Any and All

Claims (the “Motion to Dismiss”). The Motion to Dismiss stated that Tilly and

Andres had reached a settlement of the claims made by Andres and that they

requested the dismissal with prejudice of all claims in the estate. A minute

entry stated that Hall’s counsel was granted fourteen days from the date of the

filing of the Motion to Dismiss to file a response. [14] On March 31, 2017, new counsel for Hall filed an appearance and filed a

response to the Motion to Dismiss which stated that Dorothy signed her will in

2008, her mental and physical health deteriorated in 2009, she was diagnosed

with Alzheimer’s in February 2010, and that she purportedly signed a quitclaim

deed on March 5, 2010, transferring the Old Vincennes Road property to Tilly.

Hall argued that, throughout the course of the matter, the property was treated

as property of the estate and pointed to the November 6, 2015 entry authorizing

Tilly to replace the HVAC system in the home and seek reimbursement from

the estate, Tilly’s discovery upon him, and his agreement to the appointment of

a special administrator. He asserted the court should not dismiss the claims

based on Tilly’s and Andres’s secret agreement which did not account for his

interest in the property and the request to set aside deeds.

Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 6 of 19 [15] On April 6, 2017, Hall filed an affidavit in support of his response opposing the

Motion to Dismiss. Paragraph 4 of the affidavit stated: “Dorothy Hall

represented to me on numerous occasions that she wanted me to have the

Property, as it belonged to my family and she wanted me to be able to continue

to raise my cattle close to my home as I had done for decades.” Appellant’s

Appendix Volume III at 43. Hall also stated in the affidavit that: he did not

know, prior to Dorothy’s death, of her alleged conveyance of his family’s farm

on Old Vincennes Road; Tilly and Thomas did not inform him that Dorothy

had transferred the property to them or question his presence on the property

until he received the November 4, 2014 letter; when speaking with him about

the property, Tilly and Thomas always acted as if the property belonged to

Dorothy and Hall’s family; and that, until Dorothy’s death, Tilly and Thomas

always referred to the property as “mother’s property” or “mother’s house.” Id.

at 44. [16] On April 14, 2017, Tilly filed a reply arguing Hall’s claim that the 2010 deed be

set aside was time-barred. Also on that date, she filed a motion to strike Hall’s

April 6, 2017 affidavit, arguing the affidavit was untimely and violated the

Dead Man’s Statutes at Ind. Code §§ 34-45-2-4 and -5. She also filed a Motion

to Strike Jeff Hall’s Discovery Responses and Certify Admissions which stated:

the court provided the parties twenty days to respond to discovery requests; she

served requests for admissions on Hall on February 20, 2017; he moved for an

extension on March 15, 2017; he served answers to her requests which included

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a number of denials on March 31, 2017; his answers should be stricken from the

record; and her requests for admissions should be deemed admitted. [17] On July 19, 2017, Hall filed a motion for leave to intervene in the petition to set

aside deeds or be joined as an indispensable party (“Motion to Intervene”). He

argued that the agreement between Andres and Tilly failed to account for his

interest, the validity of Dorothy’s will and deeds were in controversy, and that

any approval of the agreement would contravene the compromise statute. He

argued that an interested party may join a will contest after the time for filing a

will contest had lapsed so long as the action being joined was initiated before

the expiration of the statutory period, that for the same reasons an interested

party may join a timely petition to set aside deed, and that he met the

requirements to intervene in the petition to set aside the deed. [18] In an entry dated October 17, 2018, the court denied Tilly and Andres’s Motion

to Dismiss and granted them thirty days to respond to the pending motions. On

November 17, 2018, Tilly filed a memorandum opposing Hall’s Motion to

Intervene. [19] On March 13, 2019, the court held a hearing. Tilly’s counsel requested that

Hall’s April 6, 2017 affidavit be struck and argued it was untimely and violated

the Dead Man’s Statutes. Hall’s counsel argued the affidavit was not offered as

proof for trial but to show Hall’s interest in the matter and in support of his

request to intervene and requested that the affidavit be considered for that

limited purpose, and the court stated it would allow the affidavit for the limited

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purpose requested. Tilly’s counsel then argued Hall’s responses to her requests

for admissions were untimely and her requests were deemed admitted and

asked the court to certify the admissions and strike Hall’s responses. Hall’s

counsel noted the timeline and that the issue arose with prior counsel, argued

Tilly was not prejudiced by the delay and the requests related to issues that were

central to the case, and requested the court to allow Hall’s responses to stand

or, if the requests were deemed admitted, to allow their withdrawal and

amendment. The court found the responses were central to issues which were

the crux of the case and denied Tilly’s request to strike. [20] With respect to the assertion Hall did not file a claim, Hall’s counsel argued

that it reflected a misunderstanding of the probate process, the statute to which

Tilly and Andres referred related to liabilities of the decedent, Dorothy did not

owe her children or Hall anything while she was alive, none of the issues raised

by the parties could be described as a claim, and that he had never in his career

filed a claim on behalf of a beneficiary solely as to their interest as a beneficiary. [21] The court stated, “if I went to court and [the court] ordered me to mediation

and ordered me to pay for part of the mediation and recognized me as a party, I

think I would leave with the impression that I was already in rather than out,”

“I think . . . it was reasonable for him to presume that he was already

participating as an interested party,” and “I don’t think it’s possible to

determine the wishes of Dorothy Hall and the appropriate outcome of this

estate case without Mr. Hall being allowed to participate, and so I’m going to

allow him to participate.” Id. at 30-31. Tilly’s counsel requested that the court

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strike Hall’s cross-claim, Hall’s counsel noted the cross-claim was tendered as a

proposed document and was not filed, and the court granted the request. [22] On April 26, 2019, the court issued an order denying Tilly’s motion to exclude

Hall’s discovery responses; denying Tilly’s motion to strike Hall’s affidavit; and

granting Hall’s Motion to Intervene. It certified the order for interlocutory

appeal.

Discussion [23] Tilly appeals the April 26, 2019 order. She argues the trial court should have

denied Hall’s Motion to Intervene as untimely under Ind. Code § 29-1-14-1, and

that this Court should “find that the settlement agreement between the only two

parties actively litigating the case is valid and enforceable.” Appellant’s Brief at

29. She also argues the trial court should have granted her requests to strike

Hall’s affidavits and his responses to her request for admissions. Andres filed a

brief agreeing with Tilly’s arguments. [24] Hall responds that he is not a claimant under Ind. Code § 29-1-14-1, that he is a

devisee and an interested party, and the settlement agreement between Tilly and

Andres was statutorily invalid. He notes that he retained counsel at the outset

of the proceedings in 2014, engaged in discovery, attended hearings and

mediation, and paid his share of the special administrator and mediator fees.

He argues the court did not abuse its discretion in considering his June 12, 2017

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affidavit or in denying Tilly’s motion to strike his responses to her requests for

admissions. 3

A. Hall’s Affidavits

[25] To the extent Tilly and Andres argue the trial court improperly considered

Hall’s affidavits, we note that Tilly’s April 14, 2017 motion to strike requested

the court to strike Hall’s April 6, 2017 affidavit in support of his opposition to

the Motion to Dismiss, that the court later denied the Motion to Dismiss, and

that Tilly does not argue that she filed a motion to strike Hall’s June 12, 2017

affidavit which was attached to his Motion to Intervene. Moreover, the June

12, 2017 affidavit did not include the statement found in paragraph 4 of the

April 6, 2017 affidavit regarding Hall’s conversations with Dorothy before her

death, the other statements in the affidavit relate to facts to which Hall, Tilly,

and Andres could present evidence, and the trial court noted its limited

consideration of the affidavit. 4 Reversal on this basis is not warranted.

3 Tilly also argues the trial court indicated at the March 13, 2019 hearing that it granted her motion to strike Hall’s cross-claim but that its April 26, 2019 order failed to reflect that ruling. Hall notes the proposed cross- claim was never filed but merely submitted as an exhibit to his Motion to Intervene and thus “there was nothing for the probate court to ‘strike.’” Appellee Hall’s Brief at 15 n.5. We find below that Hall has an interest in the estate and the proceeding related to the validity of Dorothy’s March 2010 deed transferring the Old Vincennes Road property to Tilly. Remand on this issue is not warranted. 4 See Johnson v. Estate of Rayburn, 587 N.E.2d 182, 184-185 (Ind. Ct. App. 1992) (holding the Dead Man’s Statutes require that “when the lips of one party to a transaction are closed by death, the lips of the surviving party are closed by law,” “[t]he application of the statute is limited to circumstances in which the decedent, if alive, could have refuted the testimony of the surviving party,” and the statutes apply “only where the claimant is prepared to testify as to matters or transactions concerning the decedent, and not merely as to matters that occurred while the decedent was alive”) (quoted with approval in Taylor v. Taylor, 643 N.E.2d 893, 896 (Ind. 1994)), superseded by statute on other grounds as recognized in Gipperich v. State, 658 N.E.2d 946

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B. Requests for Admissions

[26] As for Tilly’s requests for admissions, Ind. Trial Rule 36 provides that a matter

for which an admission is requested “is admitted unless, within a period

designated in the request, not less than thirty [30] days after service thereof or

within such shorter or longer time as the court may allow, the party to whom

the request is directed serves upon the party requesting the admission a written

answer or objection . . . .” Ind. Trial Rule 36(B) permits the withdrawal of

admissions and provides “the court may permit withdrawal or amendment

when the presentation of the merits of the action will be subserved thereby and

the party who obtained the admission fails to satisfy the court that withdrawal

or amendment will prejudice him in maintaining his action or defense on the

merits.” “As used in Rule 36(B), the word ‘prejudice’ does not mean that the

party who has obtained the admissions will lose the benefit of the admissions;

rather, it means that the party has suffered a detriment in the preparation of his

case.” Costello v. Zavodnik, 55 N.E.3d 348, 352-353 (Ind. Ct. App. 2016)

(citation and internal quotation marks omitted) (“Zavodnik would suffer no

such detriment. The matter has not yet been set for trial, Zavodnik still has

time to prepare his case, and there is no evidence that he has relied on

(Ind. Ct. App. 1995); see also Nichols v. Estate of Tyler, 910 N.E.2d 221, 227 (Ind. Ct. App. 2009) (“Evaluating mental capacity to contract for the sale of real property is closely akin to evaluating the mental capacity necessary to make a will”); Estate of Verdi ex rel. Verdi v. Toland, 733 N.E.2d 25, 26 n.1 (Ind. Ct. App. 2000) (noting a testator’s soundness of mind is an exception to the application of the Dead Man’s Statute); Lee v. Schroeder, 529 N.E.2d 349, 353 (Ind. Ct. App. 1988) (recognizing an exception regarding a testator’s soundness of mind) (listing cases), reh’g denied, trans. denied.

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Costello’s admissions in a way that would impair his ability to prepare his

case.”), reh’g denied. We review the trial court’s determination only for abuse of

discretion. Id. at 352. Here, the trial court was able to consider the extent of

Hall’s delay in filing responses, the relative timing of his obtaining new counsel,

the extent to which the requests related to central issues in the case, and the

extent to which Tilly suffered a detriment in preparing her case. According to

her motion to strike, Tilly served her requests on Hall on February 20, 2017, he

had twenty days to respond, and he served his responses on March 31, 2017.

Under these circumstances we find no abuse of discretion.

C. Hall’s Motion to Intervene

[27] We turn to the trial court’s order granting Hall’s Motion to Intervene.

Indiana’s probate code includes a definitions section. According to Ind. Code §

29-1-1-3(a), “claims” include “liabilities of a decedent which survive, whether

arising in contract or in tort or otherwise, expenses of administration, and all

taxes imposed by reason of the person’s death,” and “claimant” means “a

person having a claim against the decedent’s estate as described in IC 29-1-14-

1(a).” Ind. Code § 29-1-1-3(a)(2) and -3(a)(3). The term “devise,” when “used

as a verb, means to dispose of either real or personal property or both by will,”

and the term “distributee” includes “those persons who are entitled to the real

and personal property of a decedent under a will.” Ind. Code § 29-1-1-3(a)(7)

and -3(a)(9). Further, the term “interested persons,” which sweeps more

broadly, includes “heirs, devisees, spouses, creditors, or any others having a

property right in or claim against the estate of a decedent being administered,”

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and “[t]his meaning may vary at different stages and different parts of a

proceeding and must be determined according to the particular purpose and

matter involved.” Ind. Code § 29-1-1-3(a)(15). [28] With respect to Tilly’s and Andres’s assertion that Hall was required to file a

claim under Ind. Code § 29-1-14-1 and failed to timely do so, Ind. Code § 29-1-

14-1 provides that “claims” against an estate are barred unless filed within

certain periods. See Ind. Code § 29-1-14-1(d) (“All claims barrable under

subsection (a) shall be barred if not filed within nine (9) months after the death

of the decedent.”). However, as the definitions above reflect, not all interested

persons are claimants for purposes of Ind. Code § 29-1-14-1. The term “claims”

in the statute includes “liabilities of a decedent which survive, whether arising

in contract or in tort or otherwise.” Ind. Code § 29-1-1-3(a)(3). See In re

Lambert’s Estate, 116 Ind. App. 293, 300-301, 62 N.E.2d 871, 873 (1945)

(holding a proceeding to show proof of heirship and an interest in the

decedent’s estate was not a claim against the estate). There is no question that

Hall has not alleged the existence of a liability of Dorothy which survived her

death. We cannot say that Ind. Code § 29-1-14-1 requires reversal. [29] We turn to whether Hall was a person with an interest in the estate and the

proceeding to set aside the March 2010 deeds. Ind. Code § 29-1-9-1 provides

for the compromise of any contest or controversy as to the rights or interests in

the estate of the decedent of any person claiming under a will or as to the

Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 14 of 19 administration of the estate of a decedent. 5 The compromise statute “provides a mechanism for parties with an interest in a decedent’s estate to compromise their differences and obtain a court order approving such compromise which is then binding on the parties.” Estate of McNicholas v. State, 580 N.E.2d 978, 982 (Ind. Ct. App. 1991), trans. denied. Ind. Code § 29-1-9-2 provides that “[t]he terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons having interests or claims which will or may be affected by the compromise . . . .” Ind. Code § 29-1-9-3 provides in relevant part that, upon due notice to all “interested persons,” “the court shall, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries is just and reasonable, make an order approving the agreement . . . .” As noted, the term “interested persons” includes “heirs, devisees, spouses, creditors, or any others having a property right in or claim against the estate of a decedent being administered,” and “[t]his meaning may vary at different stages and different

5 Ind. Code § 29-1-9-1 provides:

The compromise of any contest or controversy as to: (a) admission to probate of any instrument offered as the last will of any decedent, (b) the construction, validity or effect of any such instrument, (c) the rights or interests in the estate of the decedent of any person, whether claiming under a will or as heir, (d) the rights or interests of any beneficiary of any testamentary trust, or (e) the administration of the estate of any decedent or of any testamentary trust, . . . shall, if made in accordance with the provisions of this article, be lawful and binding upon all the parties thereto . . . ; but no such compromise shall in any way impair the rights of creditors or of taxing authorities.

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parts of a proceeding and must be determined according to the particular

purpose and matter involved.” Ind. Code § 29-1-1-3(a)(15) (emphases added).

See In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind. Ct. App. 2011) (holding the

trial court erred in approving an agreement reached by the appellant’s siblings

and not signed by the appellant where, in the event of non-settlement and the

ensuing litigation resulted in the invalidation of the testamentary instruments,

the appellant would stand to inherit one-fourth of the estate), trans. denied. [30] Here, if the proceeding results in the invalidation of Dorothy’s 2010 deed

transferring the Old Vincennes Road property to Tilly, Hall would stand to

receive the property. To the extent the agreement between Tilly and Andres

was not executed by Hall and would affect his interest in the estate and

proceeding, the agreement did not satisfy the requirements of the compromise

statute. See Ind. Code § 29-1-9-2. Even assuming that, prior to his Motion to

Intervene, Hall did not expressly request to join Andres’s petition or file a

separate motion to set aside the 2010 deeds, for the reasons below we are

persuaded that he was not required to do so under the circumstances. [31] In Johnson v. Morgan, Martha Dietrich passed away leaving her estate to her

niece Ruth Ann Morgan. 871 N.E.2d 1050, 1052 (Ind. Ct. App. 2007). Two of

Dietrich’s nephews, Charles and John Wesson, filed a complaint to contest her

will alleging she lacked the capacity to execute a will due to dementia and had

been unduly influenced by Morgan. Id. Mary Johnson together with other

nieces and nephews of Dietrich later filed a motion to intervene, which the

court granted. Id. Morgan moved to dismiss Johnson’s intervening complaint

Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 16 of 19 on the basis that Johnson had filed her motion outside the statute of limitations for will contests, and the court dismissed Johnson from the lawsuit. 6 Id. On appeal, this Court held:

[W]e note that Johnson filed her complaint as an intervening party, and therefore her complaint was not the initial complaint. In Estate of Helms v. Helms-Hawkins, 804 N.E.2d 1260, 1265 (Ind. Ct. App. 2004), trans. denied, we concluded that “an interested party may join a will contest after the time for filing a will contest has lapsed, so long as the action being joined was initiated before the statutory period.” We relied in large part on State ex rel. Matheny v. Probate Court of Marion County, 239 Ind. 518, 159 N.E.2d 128 (1959), where our supreme court held that a necessary party could be added to a will contest after the expiration of the statutory time for filing such contest. Our supreme court’s ruling in Matheny was based in large part upon a passage from a nineteenth-century Indiana case addressing essentially the same issue:

Where a petition of [a will] contest is filed within the statutory period of limitation although only part of the persons interested are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired. If any person interested appears, and in good faith files his petition for a contest, the statutes entitle him to a trial, and the verdict of a jury, touching the validity of the will, and that verdict will be binding upon all parties who may be before the court as such, at the time of its rendition. The interest of the parties is joint and inseparable. Substantially this is a proceeding in rem, and the court can not take jurisdiction of the subject-matter by fractions. The will is indivisible, and the verdict of the jury either establishes it as a whole, or wholly sets it aside. To save the right of action therefore to one is necessarily to save

6 Ind. Code § 29-1-7-17 provides in part that “[a]ny interested person may contest the validity of any will in the court having jurisdiction over the probate of the will within three (3) months after the date of the order admitting the will to probate by filing in the same court, in a separate cause of action, the person’s allegations in writing . . . .”

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it to all. The case belongs to that class of actions where the law is compelled either to hold the rights of all parties in interest to be saved, or all to be barred. And it seems now to be quite well settled law, that the preference will in such cases be given to the right of action, and not to the right of limitation. The right to sue is a favored right and is guaranteed by constitutional provision while the right of limitation generally meets with more or less disfavor.

Floyd v. Floyd, 90 Ind. 130, 133-34 (1883) (citation omitted).

There has been no contention that the Wessons failed to file a complaint naming Morgan as the defendant within the three-month time frame. Consequently, the trial court acquired jurisdiction over the will contest with the filing of this complaint, and the right of action was saved as to all interested parties. Therefore, Johnson’s status as a party to the proceeding is not defeated merely by virtue of the fact that she failed to properly obtain service within the three-month time period.

Id. at 1054-1055 (emphases added). The rationale in Johnson and the authority

to which it cites supports the conclusion that, as a devisee who stands to receive

the Old Vincennes Road property if Dorothy’s 2010 deed is invalidated, Hall

was not required to file a separate request to set aside the March 2010 deeds or

join Andres’s petition. [32] In addition, the record reveals that Hall’s counsel filed an appearance soon after

the estate proceeding was initiated in 2014, and since then Hall has participated

in the hearings, was ordered to pay a share of the special administrator and

mediator fees, and requested and participated in mediation, all on the premise

he had an interest in the estate and proceeding. The record also reflects that,

prior to attempting to enter an agreement, Tilly and Andres treated Hall as

having such an interest. Andres’s 2014 petition contesting Dorothy’s will

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indicated that Hall was joined because he was beneficially interested as a

devisee under the will, and her petitions to contest the will and to set aside the

deeds were served on Hall. Thomas’s 2015 motion to resign as personal

representative stated that Tilly, Andres, and Hall were all interested parties.

The court’s January 9, 2015 agreed order defined Tilly, Andres, and Hall as

“Interested Parties,” ordered them to equally share in the fees of the special

administrator, and was signed by counsel for all three parties. Appellant’s

Appendix Volume II at 108. Further, the court’s January 31, 2017 order

referred to Hall as an interested party and expressly found the validity of

Dorothy’s will and deeds were in dispute and “[t]he interests of all three (3)

parties are very much at stake in this case and such interests [are] substantial.”

Appellant’s Appendix Volume II at 169. [33] Based upon the record, we affirm the trial court’s April 26, 2019 interlocutory

order. [34] Affirmed.

Najam, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 19 of 19