Estate of Wilson, Matter of, 48A05-9209-CV-329

Citation610 N.E.2d 851
Case DateMarch 10, 1993
CourtCourt of Appeals of Indiana

Richard F. Davisson, Davisson & Davisson, P.C., Anderson, for appellant-petitioner.

John E. Eisele, Schuyler, Eisele & Lockwood, Anderson, for appellee-defendant.


Nellie May Wilson died testate on December 6, 1990, leaving all of her net estate, worth nearly $500,000, to Roberta Wilson ("Wilson"), her niece by marriage. Wilson was named as executrix of the estate. Nearly a year after the will was probated, Erma Jean Phipps, Nellie's natural niece, challenged the will, alleging that it was unduly executed; that it was obtained under duress and by fraud; and that the decedent was of unsound mind when the will was executed. The trial court granted Wilson's motion to dismiss Phipps' complaint because it was not filed within five months after the will was probated. Phipps appeals, raising the following issues:

I. Whether the trial court abused its discretion in quashing Phipps' subpoena to depose Wilson;

II. Whether the trial court erred by striking affidavits filed by Phipps in opposition to Wilson's motion to dismiss;

III. Whether the trial court erred in dismissing the will contest; and

IV. Whether Ind.Code 29-1-7-4 is unconstitutional.

We affirm.


On March 13, 1990, Hobart Chandler, an investigator for Adult Protective Services, petitioned the Madison Superior Court for guardianship of Nellie's estate. The petition alleged that Nellie was unable to care for her financial affairs, that she suffered from periods of confusion and that she had poor short-term memory. Chandler estimated Nellie's estate to be worth about $300,000. Both Wilson and Phipps are listed on the petition as Nellie's nieces; however, Wilson is a niece by marriage and Phipps is Nellie's "natural" niece. 1 The petition for guardianship was supported by a letter from Dr. Begley, who stated that he examined Nellie and recommended that a guardian be appointed to handle her affairs. There is nothing in the record to indicate that a guardian was in fact appointed or that Nellie was found to be incompetent.

Nellie died on December 6, 1990. On December 11, 1990, Wilson petitioned for probate of Nellie's will and for the issuance of letters testamentary. Nellie's will was executed on March 16, 1990, three days after the petition for guardianship was filed. The court granted Wilson's petition on December 11.

Phipps filed her complaint challenging the will on December 27, 1991, over a year after the will had been probated. Wilson moved to dismiss the complaint for lack of subject-matter jurisdiction over the dispute. Before the hearing on Wilson's motion, Phipps subpoenaed Wilson to appear for deposition. Wilson moved to quash the subpoena and for a protective order preventing further attempts at discovery. The court granted Wilson's motion to quash, but took the request for a protective order under advisement. After a hearing, the court granted Wilson's motion to dismiss.


Phipps argues that the trial court abused its discretion when it limited her ability to conduct pre-trial discovery. She argues that discovery was necessary to defend against Wilson's motion to dismiss. Wilson argues that the trial court did not abuse its discretion in quashing the subpoena.

Indiana Trial Rule 26(C) grants the trial court discretion to make any order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. The trial court has broad discretion in ruling on a motion for such an order, and this court will interfere with the trial court's order only if an abuse of discretion is shown. Geib v. Estate of Geib (1979), 182 Ind.App. 377, 395 N.E.2d 336, 338.

Phipps cites Templin v. Erkekedis (1949), 119 Ind.App. 171, 84 N.E.2d 728, a malpractice action, in support of her argument that she should have been permitted to conduct discovery in the manner she chose. In Templin, this court held the trial court abused its discretion in granting plaintiff's request for an order protecting her from a physical examination requested by the defendant doctor. According to the court, it was an abuse of discretion to deny the defendant the only means of disproving plaintiff's claims of malpractice. Here, however, Phipps does not argue that the only way to obtain the sought-after information is through a deposition. Phipps had other means of discovery available, see T.R. 26, none of which she pursued. Therefore, we find no abuse of discretion. See, Geib, 182 Ind.App. 377, 395 N.E.2d 336.


In support of her opposition to Wilson's motion to dismiss, Phipps submitted the affidavits of Hobart Chandler, an investigator for Adult Protective Services who filed the guardianship petition, and of Greg Gregory, an officer of Star Financial Bank. Chandler averred that he was informed that Nellie had been found wandering the streets of Anderson. According to Chandler, when he visited her in her home, Nellie did not know the day of the week and she was confused. (R. 164). Greg Gregory assisted Chandler in assessing Nellie's financial situation. He averred that when he talked to Nellie at her home, she was confused and had no idea of the value of her assets. The court granted Wilson's motion to strike the affidavits because they "are not relevant, not timely filed and expressed improper opinions and conclusions of law." (R. 178).

The trial court may use affidavits in order to determine the existence or non-existence of facts which would bring the action within the court's subject-matter jurisdiction. Cooper v. County Board of Rev. of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533. However, we agree with the trial court that the affidavits were not relevant to the motion to dismiss. Wilson argued that the court lacked subject-matter jurisdiction because Phipps' complaint was filed over five months after the will had been admitted to probate. Phipps countered by arguing that this time period should be tolled because Wilson fraudulently failed to inform Phipps of Nellie's death. The affidavits--which were addressed to Nellie's state of mind--are not relevant to the issue of whether Wilson acted fraudulently.


Phipps argues that the trial court erred in dismissing her complaint because Wilson's fraudulent actions tolled the running of the five-month period in which a will contest may be filed. Phipps alleges two instances of fraud: 1) Wilson's failure to notify Phipps, Nellie's only living blood relative, of Nellie's death; and 2) Wilson's fraud in inducing Nellie to leave her entire estate to Wilson. Wilson argues that she was not required by law to give notice to Phipps; therefore, her inaction could not be considered fraud.

Pursuant to Ind.Code 29-1-7-17, any interested person may contest a will within five months after the date of the order admitting the will to probate. The right to contest a will is statutory, and if it The elements of actionable fraud are: 1) material misrepresentations of past or existing facts; 2) which misrepresentation is made with knowledge or reckless ignorance of the falsity; 3) which causes reliance to the detriment of the person relying. Id. Fraud may not be predicated on the nonperformance of acts which the defendant is not bound by law to do. First Nat'l Bank of New Castle v. Acra (1984), Ind.App., 462 N.E.2d 1345.

                is not exercised within the allotted time period, it is lost.  Matter of the Estate of Brown (1992), Ind.App., 587 N.E.2d 686;  Estate of Niemiec v. Niemiec (1982), Ind.App., 435 N.E.2d 999.   The five month limit prescribed by the statute is jurisdictional.  Niemiec, 435 N.E.2d at 1001.   Generally, failure to file a will contest within the five months will result in dismissal.  Id.  Dismissal will not result, however, where a plaintiff has been induced to refrain from a timely filing by a fraudulent misrepresentation of the defendant.  Id.; Carrell v. Ellingwood (1981), Ind.App., 423 N.E.2d 630.  "The fraudulent conduct must have been the efficient cause of the failure to timely commence the action, and all the other elements entitling the plaintiff to equitable relief must be present."  Carrell, 423 N.E.2d at 635.   Thus, in order to defeat Wilson's motion to dismiss based on fraudulent conduct, Phipps had the burden to show Wilson acted fraudulently and that the fraudulent conduct was the cause of her failure to timely file the complaint

Indiana Code 29-1-7-5 provides, in relevant part:

A petition for the probate of a will and for the issuance of letters testamentary or for the appointment of an administrator with the will annexed, or for the appointment of an administrator, shall state:

(2) The name, age and place of residence of each heir, in the event the decedent left no will; and the name, age and place of residence of each legatee and devisee, in the event the decedent left a will, so far as such are known or can with reasonable diligence be ascertained by the personal representative;

(emphasis supplied). Under I.C. 29-1-7-7(b), the clerk of the court must then serve notice, by mail, of the estate administration to each heir, devisee, legatee, and known creditor "whose name and address is set forth in the petition for probate or letters."

Nellie left a will; therefore, Wilson was required to list only the legatees and devisees named in the will. Phipps is not a devisee or legatee of Nellie's will and Wilson was not required to list her in the petition for probate. Therefore, Wilson's failure to notify Phipps of Nellie's death cannot be considered fraudulent. Acra, 462 N.E.2d 1368. Further, there is no evidence that this alleged fraud was the...

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