In re Supervised Estate of Kent, 082517 INCA, 55A01-1612-ES-2907

Docket Nº55A01-1612-ES-2907
Opinion JudgeNAJAM, JUDGE.
Party NameIn the Matter of the Supervised Estate of Gary D. Kent, Deceased; v. Cynthia Kerr, Appellee/Cross-Appellant-Petitioner. and In the Matter of the Educational Trust of the Grandchildren of Gary D. Kent; John David Kent, Kevin Kent, Jacob Anderson, Garrett Kerr, Griffin Kerr, Nicholas Kent, and David Kent, Appellants/Cross-Appellees -Respondents,
AttorneyATTORNEY FOR APPELLANTS/ CROSS-APPELLEES Darla S. Brown Sturgeon & Brown, PC Bloomington, Indiana ATTORNEY FOR APPELLEE/ CROSS-APPELLANT Robert M. Hamlett Carmel, Indiana
Judge PanelKirsch, J., and Brown, J., concur.
Case DateAugust 25, 2017
CourtCourt of Appeals of Indiana

In the Matter of the Supervised Estate of Gary D. Kent, Deceased;

and

In the Matter of the Educational Trust of the Grandchildren of Gary D. Kent;

John David Kent, Kevin Kent, Jacob Anderson, Garrett Kerr, Griffin Kerr, Nicholas Kent, and David Kent, Appellants/Cross-Appellees -Respondents,

v.

Cynthia Kerr, Appellee/Cross-Appellant-Petitioner.

No. 55A01-1612-ES-2907

Court of Appeals of Indiana

August 25, 2017

Appeal from the Morgan Superior Court The Honorable Peter R. Foley, Judge Trial Court Cause Nos. 55D01-1602-ES-000022 55D01-1603-TR-000038 55D01-1605-PL-000659

ATTORNEY FOR APPELLANTS/ CROSS-APPELLEES Darla S. Brown Sturgeon & Brown, PC Bloomington, Indiana

ATTORNEY FOR APPELLEE/ CROSS-APPELLANT Robert M. Hamlett Carmel, Indiana

NAJAM, JUDGE.

Statement of the Case

[¶1] Following the death of her father, Gary Kent ("Gary"), Cynthia Kerr ("Cynthia") filed with the probate court a verified petition to revoke the probate of Gary's will and, under a separate cause number, a complaint to revoke the probate of the will. Under a third cause number, Cynthia's brother John David Kent ("John") filed with the probate court a verified petition to docket Gary's educational trust. Following a consolidated hearing on the parties' cross-motions for summary judgment, the probate court dismissed, with prejudice, both the trust proceeding and the will contest. Specifically, the court denied Cynthia's summary judgment motion, which sought to enforce a family settlement agreement that had been executed by Gary, John, and Cynthia before Gary's death. And the court ordered the Personal Representatives, John and Gary's cousin, Kevin Kent ("Kevin"), to "proceed with administration of the probate estate pursuant to decedent's Last Will and Testament, executed on June 23, 2008." Cross-Appellant's App. at 25.

[¶2] John and Kevin filed a notice of appeal, but this court granted Cynthia's motion to dismiss that appeal after John and Kevin1 failed to timely file an appellants' brief. We retained jurisdiction, however, to hear Cynthia's cross-appeal, where she presents a single dispositive issue for our review, namely, whether Indiana Code Section 29-1-9-1 permits the prospective beneficiaries of a future inheritance to execute, prior to the decedent's death, a family settlement agreement to determine their anticipated rights or interests in the decedent's estate. We reverse and remand, and we instruct the trial court to enter judgment for Cynthia on her motion to enforce the parties' agreement.

Facts and Procedural History

[¶3] On December 19, 2015, Gary, who was terminally ill, asked John and Cynthia to sign a settlement agreement ("the agreement") regarding "how their inheritance [would] be divided" upon his death. Cross-Appellant's App. Vol. 3 at 46. At that time, Gary had a valid will, which provided in relevant part that the majority of his personal property and his entire residuary estate would be divided equally between John and Cynthia, with a few personal items going to Gary's grandson Jacob Anderson.2 The agreement provided as follows: Cynthia would receive Gary's coin collection; John would receive certain rental properties; John would "remove the mortgage on [real estate on Hacker Creek Road] at his sole expense"; and John and Cynthia would "subdivide" the Hacker Creek Road property "equally." Id. Gary, John, and Cynthia each signed the agreement, and Gary's attorney notarized it. Unbeknownst to Gary, a few days later, on December 26, John executed a written notice purporting to rescind the settlement agreement, and he notified Cynthia by certified mail.

[¶4] On January 27, 2016, Gary died. On February 9, John and Kevin filed a verified petition for probate of Gary's will and issuance of letters testamentary for supervised administration in cause number 55D01-1602-ES-22 ("ES-22").3On March 21, Cynthia filed a verified petition to revoke the probate of Gary's will. And on May 5, Cynthia filed a complaint to revoke the probate of the will under cause number 55D01-1605-PL-659 ("PL-659"). Following a hearing on the parties' cross-motions for summary judgment, the probate court found in relevant part that the agreement, which Cynthia had asked the court to enforce, does not meet the legal requirements of a "settlement agreement" or "compromise" under I.C. § 29-1-9-1, et. seq. The Settlement Agreement was executed prior to the decedent's death. At the time the Settlement Agreement was executed, the parties to the Settlement Agreement had no vested rights in decedent's estate[], but[, ] rather[, ] mere expectancy interests. In addition, John David Kent rescinded the Settlement Agreement prior to the death of the decedent. Based upon the undisputed facts presented to the Court, the Settlement Agreement does not meet the requirements of I.C. § 29-1-9-1.

Cross-Appellant's...

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