Gast v. Hall

• Decision Date: 11 December 2006
• Docket Number: No. 64A03-0511-CV-531.,64A03-0511-CV-531.
• Parties: Joseph GAST, Emmett Fitzgerald, Patty Egolf, Appellants-Plaintiffs, v. John Thomas HALL, Individually and John Thomas Hall, as Executor of the Will of Joseph Fitzgerald, Appellees-Defendants.
• Court: Indiana Appellate Court

858 N.E.2d 154

Joseph GAST, Emmett Fitzgerald, Patty Egolf, Appellants-Plaintiffs, v. John Thomas HALL, Individually and John Thomas Hall, as Executor of the Will of Joseph Fitzgerald, Appellees-Defendants.

No. 64A03-0511-CV-531.

Court of Appeals of Indiana.

December 11, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terry K. Hiestand, Sarah A. Lawson, Hiestand Law Office Chesterton, IN, Attorneys for Appellants.

Maggie L. Smith, Locke Reynolds, LLP, Greg S. Gordon, Dale & Eke, P.C., Indianapolis, IN, Attorneys for Appellees.

OPINION

VAIDIK, Judge.

Case Summary

Joseph Gast ("Gast"), Emmett Fitzgerald ("Fitzgerald"), and Patty Egolf ("Egolf") (collectively "Plaintiffs") appeal the trial court's grant of summary judgment in favor of defendant John Hall ("Hall"), individually and as the Executor of the Will of Joseph Fitzgerald, in their action to contest Joseph Fitzgerald's 2002 will. In ruling on the motion for summary judgment, the trial court found that portions of one witness's affidavit violate the "privilege and confidentiality of mediation" and that the affidavit of an attorney who did work for Joseph Fitzgerald but did not draw his 2002 will violates the attorney-client privilege. We conclude that Alternative Dispute Resolution Rule 2.11, concerning mediation confidentiality, does not bar evidence offered to prove that a person lacked testamentary capacity, because such evidence is offered for a purpose other than to prove liability for or invalidity of the claim being mediated or its amount. Furthermore, the "testamentary exception" to the attorney-client privilege, which allows the attorney who drafted an executed will to reveal client communications after the client's death in a suit between the testator's heirs, devisees, or other parties who claim under him or her, does not apply to attorneys who communicated with the testator before the testator's death but played no role in drafting the executed will. Having resolved these evidentiary issues, we reverse the trial court's grant of summary judgment in favor of Hall on Plaintiffs' claims that Joseph Fitzgerald lacked testamentary capacity when he executed his 2002 will and that Hall exerted undue influence over Uncle Joe. Therefore, we remand this cause to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History¹

John Fitzgerald ("Uncle John") and Joe Fitzgerald ("Uncle Joe") were brothers who never married and lived together all their lives on a farm owned by Uncle John. Uncle John and Uncle Joe raised Hall, their nephew, in their house for much of Hall's childhood. After Hall married, he moved into a house owned by Uncle Joe that was located across the street from the house in which he was raised and where Uncle John and Uncle Joe still lived. Hall lived in this house with his wife and children for most of his adult life. According to Hall, he and Uncle Joe had a strained relationship for some time. Uncle Joe executed a will on June 19, 1997 ("1997 will"), under which Hall was not a beneficiary.

Uncle John died on March 9, 2002, and Hall filed and admitted to probate a will executed by Uncle John on April 18, 1994, which left all of Uncle John's property to Hall. Uncle Joe filed a will contest ("First Will Contest"), alleging that the 1994 will was superceded by a will executed on March 7, 1995, which left all of Uncle John's property to Uncle Joe, but if Uncle Joe did not survive Uncle John by thirty (30) days, then to Hall. As part of this will contest, Uncle Joe and Hall attended a full-day mediation on September 11, 2002. Also in attendance at the mediation were John Casson ("Casson"), who had been helping Uncle Joe with his business matters since 2001, and Attorney Herbert Douglas ("Attorney Douglas"), whom Uncle Joe had retained to represent him in the will contest. No agreement was reached during the mediation session.² However, after the mediation the tension between Hall and Uncle Joe subsided. They continued to work to settle the First Will Contest, and Hall began helping Uncle Joe with his day-to-day activities, including driving him places he needed to go.

At some point, Uncle Joe informed Attorney Douglas that he wished to leave all of his assets to Hall. Thereafter, on November 22, 2002, Attorney Douglas's partner, Brian J. Hurley, filed a Petition for Appointment of Guardian Ad Litem, asking the trial court to appoint a guardian to advise and assist Uncle Joe in determining his best interests in the First Will Contest. The trial court granted the petition, finding that Uncle Joe was "not adequately represented" and needed assistance "in determining his best interests." Appellants' App. p. 106. That same day, Hall drove Uncle Joe to the office of Attorney Dan Berning ("Attorney Berning"), but Hall did not go into the office. Uncle Joe's Client Information Sheet states that Hall referred Uncle Joe to Attorney Berning. Attorney Berning drafted a new will for Uncle Joe that left all of Uncle Joe's property to Hall and named Hall as personal representative, which Uncle Joe signed three days later on November 25, 2002 ("2002 will"). Hall then made an appointment for Uncle Joe to be evaluated by psychologist Stanley Lelek ("Lelek"). Hall drove Uncle Joe to Lelek's office on November 27, 2002, and was present in the room during the evaluation. Uncle Joe told Lelek that he was undergoing the evaluation because "he executed a WILL that may (in the future) be contested." Id. at 60. Lelek concluded that Uncle Joe suffered short-term memory deficiency but "ha[d] the capacity to take care of himself." Id.

Uncle Joe died in January 2003. Hall submitted the 2002 will prepared by Attorney Berning to the trial court and was appointed personal representative of Uncle Joe's estate. Plaintiffs, relatives of Uncle Joe and beneficiaries under the 1997 will, filed a will contest ("Second Will Contest"), alleging that the 2002 will is invalid because: (1) Uncle Joe was of unsound mind; (2) Hall imposed undue influence on Uncle Joe; (3) Uncle Joe executed the will under duress; or (4) the execution of the will was obtained by fraud. See id. at 22-23.

Hall filed his Motion for Summary Judgment and Designation of Evidence in the Second Will Contest on November 26, 2003. In response, Plaintiffs filed, among other documents, the affidavits of Casson and Douglas and excerpts of the deposition of Hall. Hall moved to strike the affidavits of Casson and Douglas, arguing that they violate: (1) the privilege and confidentiality of mediation; (2) the attorney-client privilege; (3) the Indiana Rules of Professional Conduct; and (4) Indiana Trial Rule 56(E). Hall also moved to strike the portions of his own deposition that Plaintiffs had designated, contending that he was incompetent to testify according to Indiana's Dead Man's Statutes.³ See Ind. Code §§ 34-45-2-4 & 5.

On April 6, 2004, the trial court held a hearing on Hall's motion for summary judgment and his motion to strike Plaintiffs' designated evidence. In its Findings, Order and Judgment on August 2, 2005, the trial court granted Hall's motion to strike as to Paragraphs 6-11 of Casson's affidavit, which provide:

6. The reason [Casson] went to the mediation was to provide information on the assets owned by [Uncle Joe]; his accounts, real estate, and personal property. At the time of the mediation, [Uncle Joe] was unaware of the extent and value of his holdings and the value of money. At times during the mediation [Uncle Joe] made statements that indicated he did not understand the extent and value of his holdings and the value of money.

7. At the beginning of the mediation everyone met with the mediator in the same room. [Hall] sat across the table from [Uncle Joe]. Afterward, as the parties went to their respective rooms to continue the mediation, [Uncle Joe] asked [Casson] if [Hall] was there. [Casson] had to tell [Uncle Joe] that [Hall] was seated across from him at the table. On the day of the mediation on September 11, 2002, [Uncle Joe] did not even recognize [Hall].

8. During the course of the mediation [Casson] heard discussed many issues regarding the possible outcomes of the will contest.

9. At the time of the mediation it was clear that [Uncle Joe] was not able to understand the ramifications of the law suit and was having difficulty understanding the options presented, the potential affects on him, and the nature of the mediation.

10. [Uncle Joe] mentioned, on a number of occasions, a story about a horse that [Hall] purchased with money [Uncle Joe] loaned him. [Uncle Joe] gave the impression that this matter had recently occurred. The matter actually occurred 20 years ago. Although a series of offers of settlement were communicated to [Uncle Joe], he kept wanting to discuss this old dispute over the horse.

11. [Uncle Joe], failed to be able to comprehend the circumstances regarding the will contest and how it affected him despite a number of attempts to explain the issues involved. Offers of settlement were provided on a couple of occasions, but [Uncle Joe] would neither commit to, counter, nor decline the offers.

Appellants' App. p. 83-84. The trial court found that the paragraphs "either violate the privilege and confidentiality of mediation or are merely conclusory and should not be considered[.]" Id. at 17. The trial court also agreed to strike all of Attorney Douglas's affidavit, in which Attorney Douglas stated that Uncle Joe "failed to comprehend the situation regarding the will contest and how it affected him" and "could not determine his own best interests." Id. at 104-05. The trial court found Attorney Douglas's affidavit to be "both conclusory and violative of the attorney-client privilege now held by [Hall]." Id. at 17-18. Finally, the trial court agreed to strike part of Hall's deposition testimony, stating that it would "only consider those portions of Hall's testimony which are relevant to [Uncle Joe's]...