Markey v. Estate of Markey
| Decision Date | 04 August 2015 |
| Docket Number | No. 89S05–1412–ES–749.,89S05–1412–ES–749. |
| Citation | 38 N.E.3d 1003 |
| Parties | David J. MARKEY, Appellant (Plaintiff below), v. ESTATE of Frances S. MARKEY, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased; Stephen L. Routson, individually; and Madonna L. Reda, Appellees (Defendants below). |
| Court | Indiana Supreme Court |
Sarah C. Jenkins, Indianapolis, IN, Attorney for Appellant.
Gregg S. Gordon, McCordsville, IN, John A. Cremer, Indianapolis, IN, Attorneys for Appellees.
On Petition to Transfer from the Indiana Court of Appeals, No. 89A05–1402–ES–62.
, Justice.
(emphasis in original).
When he died, John Markey thought half of his assets would eventually pass to his son, David, pursuant to a contract to make and not revoke a mutual will John executed with his second wife, David's stepmother. Sometime after John was gone, however, David's stepmother breached that contract, instead leaving everything to her own children. David brought suit to enforce the contract, but the defendants prevailed on summary judgment: the trial court found that even though David's suit was not a “claim” in probate, it was still subject to the three-month statute of limitations for a claim, relying on Keenan v. Butler, 869 N.E.2d 1284, 1290 n. 6 (Ind.Ct.App.2007)
, trans. not sought. We find this was error, as our General Assembly added a statutory definition of “claim” when it enacted our Probate Code in 1953, Ind.Code § 29–1–1–3(a)(2), and we interpret the plain language of that definition as including an action for breach of a contract to make and not revoke a will. We thus reverse, and we remand on the question of the timeliness of David's claim, considered under the Probate Code.
Betty Markey passed away in August of 1998, survived by her husband, John, and their only child, David. That same month, John married Frances; the two had been seeing each other for several years while Betty lived in a nursing home. Shortly after reciting their vows, John and Frances contracted to make mutual wills. Consistent with that contract, the wills provided that upon the death of whoever died later, the couple's estate would be divided equally between David and Frances's granddaughter, Gillian. The contract further mandated the wills would not be revoked, specifying the beneficiaries could bring suit:
Each of the parties agrees never to revoke or alter in any way, for any reason, his or her Will executed pursuant to this Agreement. Should any Will required by this Agreement be revoked, either party, any beneficiary ..., or the personal representative of any of them may bring an action in law for monetary damages, or an action in equity for specific performance or other appropriate equitable relief, including the imposition of a constructive trust on the property of any estate in the hands of a personal representative or of any beneficiaries.
App. at 35. David received a copy of the contract and the mutual wills.
About a decade later, John died, and all of his assets passed to Frances, including over half a million dollars in Exxon stock that David's mother inherited from her parents. Although David and Frances maintained a relationship for some time, they eventually had a falling out and stopped communicating. In 2010, unbeknownst to David, Frances executed a subsequent will, revoking the mutual will with John. In this subsequent will, Frances devised all of her property equally between her own two children, Madonna Reda and Stephen Routson, and she appointed Stephen personal representative.
Frances died on July 29, 2012. Stephen admitted her will to probate on August 22 and published notice of its administration in the Western Wayne News on September 5 and 12. Although Stephen had David's father's ashes, he made no effort to contact David following Frances's death. David did not learn about her death or the subsequent will until April 25, 2013. Four days later, and nine months after Frances's death, David sued Frances's estate, Stephen, and Madonna to enforce the contract.
The parties agree that Frances's actions were contrary to the valid contract between her and David's father. They disagree, however, about the time frame in which David could seek to enforce it: Madonna moved for summary judgment, arguing David's complaint was time-barred because it was filed more than three months after Frances's will was admitted to probate. In opposition, David maintained he timely filed because he did so within nine months of Frances's death. He reasoned (or, perhaps, conceded) that his claim to enforce the contract constituted a “claim” falling under the Probate Code, but further argued he was a reasonably ascertainable creditor of the estate entitled to actual notice, and since he did not receive that notice, he had nine months to file under Indiana Code section 29–1–7–7(e)
(Supp.2014). The trial court, however, relied on Keenan v. Butler's holding that a breach of contract regarding mutual wills is neither a claim in probate nor a will contest. 869 N.E.2d 1284, 1289 (Ind.Ct.App.2007), trans. not sought. And it found persuasive a footnote in that case concerning the time to file such a breach of contract action:
We have not been asked to decide whether there is a time limit within which an action for breach of contract to make a will must be filed. However, statutes of repose, here limiting the time to file to three months, govern both claims and will contests. For timely administration of an estate, a breach of contract to make a will action should similarly be limited. Where the action is challenging the distribution pursuant to a probated will, the petition must be filed within three months of the order admitting the will to probate.
(internal citations omitted). Because David filed more than three months after Frances's will was admitted, the trial court granted summary judgment for Madonna.
David appealed, arguing the trial court erred in relying upon Keenan because that case considered the question of subject-matter jurisdiction, not time to file, and it should not be extended beyond its unique facts. He also contended that a three-month limitation period would violate his right to due process. But a unanimous panel of our Court of Appeals disagreed, affirming the outcome below. Markey v. Estate of Markey, 13 N.E.3d 453, 460 (Ind.Ct.App.2014)
. It held David's action for breach of contract was not a “claim” under the Probate Code, so—regardless of whether or not he was a reasonably ascertainable creditor—“his action was not eligible for the nine-month limitation period for filing.” Id. at 458. Instead, the panel found his suit barred by the three-month limitation period suggested in Keenan. Id. It also saw no due process violation since Stephen published notice and the evidence did not show David was entitled to actual notice. Id. at 459.
David sought transfer, pointing to—among other things—both lower courts' improper reliance on the common law definition of “claim” rather than the more recent statutory definition enacted by our legislature in the Probate Code. We granted David's petition to transfer, thereby vacating the opinion below. Markey v. Estate of Markey, 21 N.E.3d 838 (Ind.2014)
(table); Ind. Appellate Rule 58(A).
Summary judgment is appropriate only when the movant demonstrates there is no genuine dispute of material fact and it is entitled to judgment as a matter of law. Ind. Trial Rule 56(C)
. If the movant satisfies this burden, the non-movant must come forward with designated evidence showing a disputed fact exists that precludes summary judgment. Asklar v. Gilb, 9 N.E.3d 165, 167 (Ind.2014). All evidence, and the reasonable inferences drawn from it, are construed in favor of the non-movant, as are “all doubts as to the existence of a material issue.” Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind.2010).
On appellate review, this analysis remains the same; we stand in the shoes of the trial court. S. Shore Baseball LLC v. DeJesus, 11 N.E.3d 903, 907 (Ind.2014)
. Of course, we review any questions of law de novo, and so “we will reverse if the law has been incorrectly applied to the facts.” Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012). Otherwise, we will affirm the trial court's ruling based on any theory supported by record evidence. Id.
Markey argues his claim for breach of contract to make and not revoke mutual wills constitutes a “claim” as defined by our Probate Code. We agree.
In 1953, based upon the work of the Indiana Probate Code Study Commission and guided by the American Bar Association's Model Probate Code, our General Assembly enacted our state's modern Probate Code, “the first major modification of Indiana law relating to the administration of decedents' estates in more than half a century.” Possession and Control of Estate Property During Administration: Indiana Probate Code Section 1301, 29 Ind. L.J. 251, 252 (1954). Up until that time, much of our law on the subject came from Chapter 9 of the Acts of 1881. Id. at n. 3. The revisions were substantial; thus, “care must be taken in evaluating court decisions before 1954 in the probate field because of the extent to which they may have been influenced by principles of law repudiated or varied by the Probate Code.” 1A John S. Grimes, Henry's Probate Law and Practice of the State of Indiana § 5 at 22 (7th ed. 1978).
Under our current statutory scheme, although claims may be brought against an estate, they must be brought rather swiftly. Indeed, one of the basic tenets underlying the procedural provisions in our Probate Code is “the uniform...
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