Troxel v. Troxel, No. 71S04-0008-CV-480.

Docket NºNo. 71S04-0008-CV-480.
Citation737 N.E.2d 745
Case DateNovember 03, 2000
CourtSupreme Court of Indiana

737 N.E.2d 745

Kevin R. TROXEL and Rick L. Troxel, Appellants (Petitioners Below),
v.
Joanne K. TROXEL, Personal Representative of the Estate of Jack L. Troxel, Deceased, Appellee (Respondent Below)

No. 71S04-0008-CV-480.

Supreme Court of Indiana.

November 3, 2000.


737 N.E.2d 746
Paul T. Cholis, South Bend, Indiana, Attorney for Appellants

Randy J. Spitaels, Loren R. Sloat, Nappanee, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

We hold that where a probate court erroneously admits a will to probate after the expiration of the statute of limitations, the court's subsequent orders are voidable and subject to attack via a timely will contest, but are not void. Accordingly, any interested party with notice of the belated effort to probate the will must object within the five-month period for a will contest.

Factual and Procedural Background

Jack Troxel and his second wife, Joanne, lived in a home on a twenty-four acre parcel of property in rural St. Joseph County. After their marriage, they purchased several adjoining parcels that were titled in both of their names as joint tenants with right of survivorship. In 1981, Jack executed a will leaving his entire estate to Joanne and naming her as the personal representative of his estate. Jack died in 1992. His heirs-at-law included his spouse Joanne and two sons from a previous marriage, Kevin and Rick Troxel (hereinafter "the Troxels").

The property on which Joanne resided was in fact held of record by Jack alone, but Joanne assumed that Jack held no assets solely in his name and therefore took no steps to probate his will or open an estate. The three-year statutory period for probating Jack's will after his death expired in 1995. It seems obvious that the Troxels also assumed the property was Joanne's after Jack's death. There is no indication in the record that the Troxels took any action to assert their alleged ownership of the twenty-four acre parcel. They did not seek to open Jack's estate as intestate, which, if successful, would have made Kevin and Rick Troxel the undisputed fee simple owners of the property subject to Joanne's life estate in one-third of the parcel. Ind.Code § 29-1-2-1(c) (1998). Nor did they pay property taxes on the parcel, or take any action to remove Joanne from the property, or collect rent from Joanne.

Joanne continued to live in the marital residence until December 1996, when her home was destroyed by fire. Joanne filed a claim on her insurance policy and sought

737 N.E.2d 747
a building permit to replace the residence. In the course of that process she learned for the first time that the twenty-four acre parcel was titled in Jack's name only

On July 22, 1997, in order to have the title to the parcel transferred to her, Joanne filed her Petition for Probate of Will and Issuance of Letters. One week later, the St. Joseph Probate Court admitted Jack's will to probate. Joanne's petition acknowledged Indiana Code section 29-1-7-15.1(d), which states that a will shall not be probated unless the process is initiated within three years of the decedent's death. Despite the statute, the probate court admitted the will to probate and subsequently followed standard procedure, including publishing notices of administration.

A few weeks after the will was admitted to probate, on or about August 14, 1997, Kevin telephoned one of the attorneys representing the estate and asked about the administration of Jack's estate. He was sent a copy of the will on that day. Ten months later, on June 19, 1998, the probate court closed the estate and issued an Order on Final Account and Decree of Final Distribution and Discharge of Personal Representative. Pursuant to the terms of the will, all assets in the estate were transferred to Joanne. On August 7, 1998, the Troxels petitioned the probate court to reopen the estate and revoke the probate of the will on the ground that it was erroneously admitted to probate more than three years after Jack's death. Joanne responded with a motion to dismiss alleging that the petition failed to state a claim upon which relief could be granted under Indiana Trial Rule 12(B)(6).

The probate court issued a Memorandum of Law finding that, although it did not have the statutory authority to admit Jack's will to probate more than three years after his death, its decision was not void, but merely voidable. The probate court ruled that the probate of Jack's will could have been defeated by a timely will contest, but that the Troxels' petition to reopen the estate, filed more than five months after the will was admitted to probate, was an untimely will contest barred by Indiana Code section 29-1-7-17. Accordingly, the court granted Joanne's motion to dismiss.

After a motion to correct error was denied, the Troxels appealed. The Court of Appeals reversed the order dismissing the Troxels' petition, holding that "the probate order was barred as a matter of law when it was entered, and the petition to revoke that order should have been granted." In re Estate of Troxel, 720 N.E.2d 731, 736 (Ind.Ct.App.1999).

The probate court's decision to disallow the Troxels' petition to reopen the estate was based on Joanne's motion to dismiss under Indiana Trial Rule 12(B)(6). However, Joanne submitted two affidavits to the probate court in support of her motion to dismiss. By the terms of Rule 12(B)(6), where affidavits are "presented to" the trial court in support of a motion to dismiss for failure to state a claim, the trial court is to treat the motion as a motion under Rule 56 for summary judgment. In this case, no evidence was formally designated in the trial court because the motion was filed as a Rule 12 motion to dismiss, not as a Rule 56 motion for summary judgment. If a Rule 12 motion is accompanied by affidavits or other appropriate factual matters, the matters "presented" are treated as designated by the party. Ind. Trial Rule 12(C). The Troxels introduced no evidence to contest Joanne's assertions of fact. Shortly after Joanne's motion was filed, the Troxels acknowledged that her affidavits raised evidentiary issues and expressed a desire to respond. Although the trial court did not rule until three months after Joanne's motion, the Troxels never filed affidavits or any other evidence disputing Joanne's factual assertions. Therefore, the uncontroverted evidence before the trial court consisted of Joanne's two affidavits.

737 N.E.2d 748
Standard of Review

On appeal, the standard of review for a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Shell Oil, 705 N.E.2d at 983-84. The review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993).

I. Admission of Will to Probate

The Troxels make two interrelated arguments supporting their contention that the trial court erred when it denied their petition to reopen Jack's estate and revoke the order of probate. Jack's will was offered into probate more than three years after his death, in violation of Indiana Code Section 29-1-7-15.1(d). For that reason, the Troxels first argue that the probate court's orders to admit the will to probate and close the estate were void ab initio. The Court of Appeals agreed with this reasoning. Troxel, 720 N.E.2d at 735.

We agree with the Court of Appeals that the language of Indiana Code section 29-1-7-15.1(d) clearly and unambiguously bars the admission of wills to probate more than three years after death. However, we do not agree that where a probate court admits a will to probate in violation of the statute, the order is void ab initio. Some form of the statute of limitations for the probate of wills has been a part of Indiana state and territorial laws since 1814. 1A Henry's Probate Law & Practice (1999). However, this is the first case in which the Indiana appellate courts have been confronted with the question of the proper remedy when a court erroneously admits a will to probate after the statutory time limit.

The Troxels rely on a 1968 opinion from the Court of Appeals to strengthen their contention that the probate court's order admitting Jack's will to probate was void ab initio. In re Estate of Cameron involved a holographic, unsigned, and unwitnessed codicil that the trial court had admitted to probate even though it did not meet...

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102 practice notes
  • Cook v. Ford Motor Co., No. 49A02-0802-CV-130.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 21, 2009
    ...not be aware."). 5. Although it is often said that a party may not raise an issue for the first time on appeal, see Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000), because we can affirm a grant of summary judgment on any ground supported by the record—not just on those grounds argued by t......
  • Naugle v. Beech Grove City Schools, No. 49S02-0606-CV-242.
    • United States
    • Indiana Supreme Court of Indiana
    • April 27, 2007
    ...(Ind.2001)). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Troxel v. Troxel, 737 N.E.2d 745, 748 (Ind. 2000) (citing Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998)). The review of a summary judgment motion is limit......
  • Thomson Inc. v. Ins. Co. of N. Am., No. 49A05–1109–PL–470.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 15, 2014
    ...Canada). Thomson points out that XL failed to raise this argument below, and therefore it has waived this claim. See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000) (stating that a party may not raise an issue for the first time on appeal). Moreover, because the exclusion applies only to X......
  • Clary v. Lite Machines Corp., No. 79A05-0411-CV-610.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 11, 2006
    ...pretrial hearing. Id. at 10. Generally, a party may not raise an issue for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000). Lite was present at the hearing when BB & C's counsel made the statement at issue, and Lite offers no explanation as to w......
  • Request a trial to view additional results
102 cases
  • Cook v. Ford Motor Co., No. 49A02-0802-CV-130.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 21, 2009
    ...not be aware."). 5. Although it is often said that a party may not raise an issue for the first time on appeal, see Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000), because we can affirm a grant of summary judgment on any ground supported by the record—not just on those grounds argued by t......
  • Naugle v. Beech Grove City Schools, No. 49S02-0606-CV-242.
    • United States
    • Indiana Supreme Court of Indiana
    • April 27, 2007
    ...(Ind.2001)). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Troxel v. Troxel, 737 N.E.2d 745, 748 (Ind. 2000) (citing Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998)). The review of a summary judgment motion is limit......
  • Thomson Inc. v. Ins. Co. of N. Am., No. 49A05–1109–PL–470.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 15, 2014
    ...Canada). Thomson points out that XL failed to raise this argument below, and therefore it has waived this claim. See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000) (stating that a party may not raise an issue for the first time on appeal). Moreover, because the exclusion applies only to X......
  • Clary v. Lite Machines Corp., No. 79A05-0411-CV-610.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 11, 2006
    ...pretrial hearing. Id. at 10. Generally, a party may not raise an issue for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000). Lite was present at the hearing when BB & C's counsel made the statement at issue, and Lite offers no explanation as to w......
  • Request a trial to view additional results

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