Belanger's Estate, Matter of

Decision Date24 March 1982
Docket NumberNo. 3-281A52,3-281A52
Citation433 N.E.2d 39
PartiesIn the Matter of the ESTATE OF Murrell BELANGER, Sr. Donna HANIFORD and Johanna Schmal, Plaintiffs, v. Emily V. BELANGER, Defendant. Robert A. BELANGER, Murrell Belanger, III, and John Belanger, Appellants-Plaintiffs, v. Emily V. BELANGER, et al., Appellees-Defendants.
CourtIndiana Appellate Court

Harold Abrahamson, Abrahamson, Reed & Tanasijevich, Hammond, for appellants-plaintiffs.

Lester F. Murphy, Murphy, McAtee, Murphy & Costanza, East Chicago, for appellees-defendants.



This action is a consolidation of two lawsuits filed by the children and grandchildren of Murrell Belanger, Sr., seeking to invalidate his will for reasons of incapacity, undue influence, duress, fraud, mistake, and improper execution. The defendant-appellees We reverse.

moved for summary judgment in Lake Superior Court. After briefing and argument on the motion the trial court entered judgment for the defendants and the plaintiff-appellants brought this appeal.


1. Did the court err in concluding that no material issue of fact remained in dispute?

2. Is summary judgment proper when state of mind is an issue?


Murrell Belanger, Sr., died on June 6, 1977, at age 75. He was survived by his third wife, Emily; two daughters from a second marriage, Johanna and Donna; and three grandsons Robert, Murrell III and John, children of a deceased son from his first marriage.

A will dated October 22, 1976, was duly admitted to probate. The will devised an amount equal to the estate tax marital deduction to decedent's wife, Emily. The remaining property was placed in trust, the income to be paid to Emily, the corpus to be distributed equally to five beneficiaries including Donna and Johanna at Emily's death. The will was signed by the testator on each page and at the end. It was attested by three witnesses, Catherine Parry, Malcolm Parry and Dorothy Maden.

During the final years of Murrell's life he suffered from several physical ailments including arteriosclerotic vessel disease, emphysema and diabetes. A cataract condition was surgically corrected in early 1976. Murrell's physical condition necessitated frequent use of oxygen. Despite these physical impediments, affidavits offered by the appellees indicate the decedent conducted his business affairs up until his death, visited with friends, travelled between Arizona and Indiana and stayed in contact with his daughters and grandsons by phone and personal visits. Testimony offered by Murrell's accountant revealed the purpose for executing a new will was to take advantage of the increased estate tax marital deduction under the then newly enacted federal estate tax code. All of the deponents and affiants who dealt with Murrell on a daily basis agreed that he was competent at the time he executed his will.

The will contestants contradicted that evidence with affidavits submitted by nurses who attended Murrell during a hospital stay in August, 1976. Their conversation with Murrell related only to his desire to leave the hospital and covered no more than twenty minutes. From this contact they concluded that Murrell was of unsound mind. One nurse later recanted her opinion. Dr. Robert Belanger also concluded that his grandfather was of unsound mind based upon conversations with Murrell several months prior to the date of will execution. Donna Haniford, daughter of the decedent, also asserted that her father was of unsound mind but produced no foundation to support that conclusion. Daughter Johanna offered no opinion relative to her father's mental capacity.

Those present at the signing of the will agreed that Murrell was competent and uniformly testified that Murrell knew he was signing his will and signed it in their presence and they in his. However, Catherine Parry also stated she signed each page of the will. The will admitted to probate bore only the testator's signature on each page.

When Murrell was admitted to the hospital in Geneseo, Illinois, Emily signed his name on the admission form. When he dismissed himself later he signed the form personally. The appellants submitted an affidavit from a questioned document examiner stating the signature on the will did not match the signature on the hospital release form.


Summary judgment is appropriate only when the strict requirements of Trial Rule 56 have been met. The procedural guidelines pertinent to this appeal are found at Ind. Rules of Procedure, Trial Rule 56(C):

"The judgment sought shall be rendered forthwith if the pleadings, depositions Thus, the test for granting a motion for summary judgment is that there be no genuine issue or dispute as to the material facts of the case. English Coal Co., Inc. v. Durcholz, (1981) Ind.App., 422 N.E.2d 302. The moving party bears the burden of showing there is no genuine issue as to any material fact. Poxon v. General Motors Acceptance Corp., (1980) Ind.App., 407 N.E.2d 1181. Conversely, the party opposing summary judgment must present adequate factual evidence to controvert the moving party's declaration that no factual dispute exists. Shideler v. Dwyer, (1981) Ind., 417 N.E.2d 281. While the appellant is not required to divulge his entire case, the strictures of T.R. 56 do compel the non-moving party "to disgorge sufficient evidence to show the existence of a genuine triable issue." (citations omitted) Pan American World Airways, Inc. v. Local Readers Service, Inc., (1968) 143 Ind.App. 370, 240 N.E.2d 552, 556.

answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The key terms "material" and "genuine" have been defined:

"A fact is material where its resolution is decisive of the action or a secondary issue." Lee v. Weston, (1980) Ind.App., 402 N.E.2d 23, 24.

"(A) factual issue is 'genuine' if it is not capable of being conclusively foreclosed by reference to undisputed facts." Stuteville v. Downing, (1979) Ind.App., 391 N.E.2d 629, 631.

When applying these rules pursuant to a motion for summary judgment the judge may not weigh the evidence presented with the motion nor resolve disputes as to different inferences that could be drawn from undisputed facts. Carrell v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630, transfer denied. Nor may a trial by affidavit be conducted as a substitute for a trial on the merits.

The standard of review applied by the courts of appeal is the same as that of the lower courts; summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Enderle v. Sharman, (1981) Ind.App., 422 N.E.2d 686. All facts alleged by the non-moving party are regarded as true and all doubts are resolved against the moving party. Suyemasa v. Myers, (1981) Ind.App., 420 N.E.2d 1334.

After reviewing the briefs and record submitted on appeal, it is apparent the appellants have demonstrated a factual dispute concerning execution of the will. Catherine Parry, a witness to the will, made the following statement during her deposition testimony:

"The lady would be sitting here (indicating), Murrell sat down here (indicating). He says, 'Now I'll...

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