Petition for Writ of Certiorari — Phipps v. Wilson

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SUPREME COURT OF THE UNITE

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93-691 ere D |

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OFFICE OF BAK DLERK

No.

IN THE

October Term, 1993

IN THE MATTER OF THE ESTATE OF:

NELLIE MAY WILSON. DECEASED

ERMA JEAN PHIPPS, Petitioner

ROBERTA K. WILSON, EXECUTRIX OF

THE ALLEGED LAST WILL AND

TESTAMENT OF THE DECEASED, NELLIE

MAY WILSON:

and ROBERTA K. WILSON, Respondent

PETITION FOR WRIT OF CERTIORARI

Daniel S. Davisson

DAVISSON & DAVISSON, P.C.

1111 Meridian Plaza

Anderson, Indiana 46016

(317) 643-6657

Counsel of Record

David W. Stone IV

STONE Law Office & Legal Research

26 W. 8th Street., P.O. Box 1322

Anderson, Indiana 46015

(317) 644-0331

Attorneys for Petitioner

Question Presented for Review

Do the provisions of the Indiana Probate Code violate the due

process clause of Fourteenth Amendment to the United States Con-

stitution by not requiring that a person who would inherit if a dece-

dent died intestate be given notice of the probate of a will which

disinherits such person?

List of Parties in the Proceedings in the Court Below

Erma Jean Phipps is the petitioner here and was the petitioner

in the trial court and the appellant in the state appellate

proceedings.

Roberta K. Wilson was a respondent in the trial court proceed-

ings and an appellee in the state appellate proceedings both as exec-

utrix of the last will and testament of the deceased Nellie May

Wilson and as an individual.

Table of Contents

Question Presented for Review ................

List of Parties to the Proceedings in the Court Below

ee ae on ek ne W es

re ae

Statement of Jurisdiction ..............--+-..-

Constitutional Provision, Treaties, Statutes, Rules and

CS eee ee er ee

EE a ee ee ee

alae eg 5 An wok ak 6 ee oe 8 ee 8

Appendix:

A. Opinion of the Trial Court ...............

B. Opinion of the Court of Appeals of Indiana

ill

page

Table of Authorities

CASES

Altshuler v. Minkus-Whalen, 31 Mass.App.Ct. 937,

FEF CA: BO CRED ie ee 8 ae ele 9

Board of Regents of State College v. Roth(1972), 408

U.S. 564, 92 S.Ct. 2701, 33 1..Ed.2d 548 ... 10

Boddie v. Connecticut, 401 U.S: 271, 91 S.Ct. 780,

Se A BAS CUPPED ack eae Peet ee )

Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62

nee, SOP CUE TE> 6 85 sk ek owe es ee es 8

Dickman v. Commissioner of Internal Revenue, 465

U.S. 330, 104 S.Ct. 1086, 79 L.Ed.2d 343

RE. as tele Ce eR a aS _ 8

Fidelity & Deposit Co. of Maryland v. Arenz (1933),

290 U.S. 66, 54 S.Ct. 16, 78 L.Ed. 176 .... 8

Gano Farms, Inc. v. Estate of Kleweno, 2

Kan.App.2d 506, 582 P.2d 742 (1978) ..... 10

Garner v. Harrison (1991), 260 Ga. 866, 400 S.E.2d

We he ea cee ee a a oe ee 10

Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct.

518, 15 L.Bd.2d 447 (1966) ..........-.. 8

Goldberg v. Kelly, (1970), 397 U.S. 254, 90 S.Ct.

SSS, Se CAT oo ee See ee 8

Hebert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71

eee te IR ne oe ie < ae ee we 11

Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42

Rca UN MID 5b ne Gen oe 9-8 wha 8 8

In Matter Estate of Lawver, 86 Or.App. 711, 740

Pt En ED soos ko 3 A ee 10

Jago v. Van Curen (1981), 454 U.S. 14, 102 S.Ct.

Pe Pe a Le a wR ee eee 10

Logan v. Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982) ....... 8

Table of Authorities— Continued)

CASES

Matter of Estate of Weidman (1991), lowa, 476

RE pn oe arn aan od ok ca ae ck SE

Matter of Estate of Wilson, 610 N.E.2d 85]

Ce RUE eb ai ak sae a et

Mennonite Board of Missions v. Adams, 462 U.S.

791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)

Morris v. Mull (1924), 110 Ohio St. 623, 144 N.E.

eater OI ta re, Bich Aaa tie SN tn Pode ae a

Mullane v. Central Hanover Bank and Trust Co., 339

U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)

North Georgia Finishing, Inc. v. Di-Chem, Inc., 419

U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975)

Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d

SOs ee Se PE sn see ok es eee

Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

(ie ew es ? er ere aree

Reardon v. Whalen, 306 Mass. 579, 29 N.E.2d 23

ee. recs Ser ee ee oe ee.

Smith v. Estate of King, 579 So.2d 1250 (Miss..,

ON 6s tak ae erie a etale poe a Ora ates

Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2967, 41

Ms rg oS Mi Rane, ne aaa eae

Todd v. Ehresman, 132 Ind.App. 440, 175 N.E.2d

Ee CE bk EN PNG SRS CESS

Tulsa Collection Services, Inc. v. Pope, 485 U.S.

478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988)

Table of Authorities— Continued)

CONSTITUTIONAL PROVISION

United States Constitution Fourteenth Amendment

STATUTES

ES ty a rr

a kD 2 ee

Indiana Code § 29-1-7-4 ................2.45.

Indiana Code § 29-1-7-7 ...................

Indiana Code § 29-1-7-17 ..................

Uniform Probate Code § 3-705 ..............

TEXTBOOKS

Falender, Henry's Indiana Probate Law and Practice

ne Ss a Soa eh ga ew

Falender, Notice to Creditors in Estate Proceedings:

What Notice is Due? , 63 N.C.L.Rev. 659 (1983)

Jaeger, Williston on Contracts (3rd ed.) § 1681A

Opinions Below

The decision of the Circuit Court of Madison County, Indiana,

dismissing the will contest was entered June 15, 1992.

The judgment of the Court of Appeals of Indiana was entered

March 10, 1993. The opinion is reported as Matter of Estate of

Wilson, 610 N.E.2d 851-8 (Ind.App., 1993).

The petition for rehearing was denied by the Court of Appeals

of Indiana without opinion on May 17, 1993.

The Petition to Transfer to the Supreme Court of Indiana was

denied without opinion on August 2, 1993.

Statement of Jurisdiction

The Supreme Court of Indiana denied a petition to transfer on

August 2, 1993. This petition for certiorari was filed less than 90

days from that date. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

Constitutional Provisions, Treaties, Statutes, Rules

and Regulations

The relevant portion of the 14th Amendment to the United

States Constitution says in part:

Section 1. .. . No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law; .. .

Indiana Code § 29-1-7-4 states:

Any interested person or a personal representative named

in the will may petition the court having jurisdiction of the

administration of the decedent’s estate:

(a) To have the will of such decedent, whether the same

is written or is unwritten, is in his possession or not, is lost,

destroyed, or without the state, probated;

(b) For the issuance of letters testamentary to the executor

named in said will for the administration of said estate:

annexed is no executor is designated in said will or if the per-

son so designated with not qualified, dead or refuses to serve;

(d) For the appointment of an administrator of the estate

of any person dying intestate.

A petition for probate may be combined with a petition

for the issuance of letters testamentary, or as administrator

with the will annexed, and a person interested in the probate of

a will and in the administration of the estate may petition for

both.

No notice that a wiil is to be offered for probate or that it

has been probated shall be required.

No notice of the filing of, and hearing on, the petition

described in this section shall be given to, or served, upon any

person. If the petition described herein is filed in term time, it

shall be heard forthwith by the court, and if filed in vacation it

shall be heard by the judge of said court if present, or in his

absence by the clerk of the said court.

Indiana Code § 29-1-7-7 states:

Notice of appointment of personal representative—

Creditors to file claims—Form of notice.— (a) As soon as

letters testamentary or of administration, general or special,

supervised or unsupervised, have been issued, the clerk of the

court shall publish notice of the estate administration.

(b) The notice required under subsection (a) shall be pub-

lished in a newspaper of general circulation, printed in the

English language and published the county where the court is

located, once each week for two (2) consecutive weeks. A

copy of the notice, with proof of publication, shall be filed

with the clerk of the court as a part of the administration of the

estate within thirty (30) days after the publication. If no news-

paper is published in the county, the notice shall be published

in a newspaper published in an adjacent county.

served by mail on each heir, devisee, legatee and known credi-

tor whose name and address is set forth in the petition for pro-

bate or letters. The personal representative shall furnish

sufficient copies of the notice, prepared for mailing, and the

clerk of the court shall mail the notice upon the issuance of

letters.

(d) The personal representative or the personal represen-

tative’s agent shall serve notice on each creditor of the

decedent:

(1) Whose name is not set forth in the petition for probate

or letters under subsection (c);

(2) Who is known or reasonably ascertainable within

three (3) months after the first publication of notice under

subsection (a); and

(3) Whose claim has not been paid or settled by the per-

sonal representative.

The notice may be served by mail or any other means reasona-

bly calculated to ensure actual receipt of the notice by a

creditor.

(e) Notice under subsection (d) shall be served within

three (3) months after the first publication of notice under sub-

section (a) or as soon as possible after the elapse of three (3)

months. If the personal representative or the personal repre-

sentatives agent fails to give notice to a known or reasonably

ascertainable creditor of the decedent under subsection (d)

within three (3) months after the first publication of notice

under subsection (a), the period during which the creditor may

submit a claim against the estate includes the period specified

under IC 29-1-14-1 and an additional period ending two (2)

months after the date notice is given to the creditor under sub-

section (d). However, a claim subject to this subsection may

not be filed more than one (1) year after the death of the

decedent.

(f) A schedule of creditors that received notice under sub-

section (d) shall be delivered to the clerk of the court as soon

as possible after notice is given.

(g) The giving of notice to a creditor or the listing of a

creditor on the schedule delivered to the clerk of the court does

not constitute an admission hy the personal representative that

the creditor has an allowable claim against the estate.

(h) If any person entitled to receive notice under this sec-

tion is under a legal disability, notice may be served upon or

waived by the person’s natural or legal guardian or by the per-

son who has care and custody of the person.

(i) The notice shall read substantially as follows:

NOTICE OF ADMINISTRATION

In the Court of

County, Indiana.

Notice is hereby given that ________ was on the

day of , 19__, appointed personal representa-

tive of the estate of deceased.

All persons having claims against said estate, whether or

not now due, must file the same in said court within five (5)

months from the date of the first publication of this notice or

said claims will be forever barred.

Dated at , Indiana, this day of

— ,

CLERK OF THE COURT

FOR COUNTY, INDIANA

Indiana Code § 29-1-7-17 states:

Action to contest will—Limitation—C omplaint—Par-

ties.—Any interested person may contest the validity of any

will in the court having jurisdiction over the probate of the will

within five (5) months after the date of the order admitting the

will to probate by filing in the court the person’s allegation in

writing verified by affidavit, setting forth:

(1) The unsoundness of mind of the testator:

(2) The undue execution of the will’

(3) That the will was executed under duress or was ob-

tained by fraud: or

(4) Any other valid objection to the will’s validity or the

probate of the will.

The executor and all persons beneficially interested in the

will shall be made defendants to the action.

Statement of the Case

In 1990, Nellie Wilson was found by local police in a con-

fused and wandering state. She was 79 years old. On March 13,

1990, a petition for the appointment of a guardian over her was

filed by an investigator for the Adult Protective Services of Region

One, State of Indiana. The petition was supported by a physician

who had examined her and found her to be suffering from periods

of confusion and short term memory.

Notice of the guardianship proceedings was given to the peti-

tioner and to Roberta K. Wilson whose counsel entered his appear-

ance on her behalf and on behalf of Nellie Wilson on March 27,

1990.

On March 16, 1990, Nellie Wilson signed a will which gave

all her property to Roberta Wilson who was a niece by marriage

and ineligible to inherit by intestate secession, and named her as

Executrix of her estate. Erma Phipps was the niece and nearest

blood relation of Nellie Wilson and would have taken her estate

under the laws of intestate secession under the laws of the state of

Indiana.

The will was prepared and witnessed by’ the same attorney

who appeared in the guardianship proceedings on behalf of Roberta

Wilson and who represented Roberta Wilson as Executrix in these

proceedings.

Nellie Wilson died December 6, 1990. Her will was admitted

to probate on December 11, 1990.

Roberta Wilson and her attorney knew of the existence of

Erma Phipps and her location.

Erma Phipps was hospitalized for many weeks after the death

of her aunt. Following her hospitalization and a partial recovery she

attempted to contact her aunt and then learned of her aunt’s death

for the first time in approximately December of 1991. On Decem-

ber 27, 1991, while the estate was still open but after the time peri-

od had run under Indiana law for the filing of an action to contest a

will the petitioner filed a will contest. The Estate on January 24,

1992, filed a motion to dismiss the will contest on the ground it was

untimely.

The challenge To the constitutionality of the probate law of In-

diana permitting a will to be probated that disinherits the person

who would otherwise take the estate of the decedent if such dece-

dent had died intestate without notice to such heir was raised on

March 5, 1992, in Petitioner's response to the motion to dismiss the

will contest. The state trial court rejected the petitioner’s claim that

the lack of notice denied her due process of law and ordered the

dismissal of the will contest on June 15, 1992.

On the direct appeal to the Court of Appeals of Indiana, the

petitioner again argued that the state statutes denied her due process

of law by not affording her personal notice of the probate of the

will which disinherited her. The Court of Appeals of Indiana also

rejected the argument. The same argument was raised in the Indi-

ana Supreme Court which declined to review the case.

Reasons for Granting Writ

This case presents an opportunity for this Court to resolve the

conflict that has arisen among the states as to the character of the

right or interest to take property under the laws of intestate seces-

sion and whether due process requires that a person whose exis-

tence and address are known and who, but for the probate of a will,

would take an estate, is entitled to receive notice of such probate of

the will so that she is afforded an opportunity to contest it.

The Court of Appeals of Indiana concluded that the petitioner

was not entitled to receive notice of the probate of the will because

her interest as an heir was a ‘“‘mere expectancy’’ and as such did

not qualify as property for purposes of due process protection. Mat-

ter of Estate of Wilson, 610 N.E.2d 851, 858 (ind.App., 1993).

To say, as the Court of Appeals of Indiana did, that there is no

right entitled to due process protection, i.e. notice of a proceeding,

unless the action which would be triggered by the notice is taken

even in the absence of notice is no different than the position taken

by the estate which was rejected by this Court in Tulsa Collection

Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d

565 (1988). There a creditor who did not file a claim against an

estate within the statutory time period and who was not given per-

sonal notice of the fact that an estate had been opened was told by

the state courts it was not denied due process when they held the

claim was barred under the state statute which was a self-executing

non-claim statute which did not require actual notice. This Court

disagreed and held that the cause of action against the estate for an

unpaid bill, while an intangible interest, was property protected by

the Fourteenth Amendment. It was further held that due process

required that readily identified creditors be given actual notice in

order to have a chance to assert their claims. The cause of action of

the petitioner in this case to contest the will was no less a protected

property interest. She was stripped of that property interest without

any notice of the pending proceedings. The Court of Appeals of

Indiana justified this action on the ground she had no property in-

terest entitled to due process notice protection due to her failure to

file a will contest within the statutory time limits. The similarity of

such reasoning to a dog chasing its tail is readily apparent. She was

denied due process of law.

The Iowa Supreme Court has considered the same question

which was decided by the Court of Appeals of Indiana and reached

the opposite conclusion in Matter of Estate of Weidman, 476

N.W.2d 357 (Iowa, 1991). The lowa probate statute only required

notice by publication of the probate of a will. An heir argued that

this denied him due process of law and that his right to contest the

will could not be extinguished merely by notice by publication. The

_lowa Supreme Court agreed holding that although in Tulsa Collec-

tion Services, Inc. v. Pope, supra, this Court did not extend its

ruling beyond creditors of an estate, the rationale for this determi-

nation, however, should also apply to other interested parties, espe-

cially parties whose rights may be precluded by published notice.

This case presents an excellent opportunity for this Court to resolve

the question of whether a person who would take an intestate estate

is entitled to notice of the probating of a will that changes such

result under the due process clause or if such interest may be cut off

after only service by publication to creditors of the probating of the

will.

The petitioner submits that the reasoning of the lowa Supreme

Court is far more persuasive than the opinion by the Court of Ap-

peals of Indiana and is much more in harmony with past decisions

of this Court.

Semantic labeling such as engaged in by the Court of Appeals

of Indiana in an effort to justify not providing notice on the ground

something is not a right as opposed to being a privilege has consis-

tently been rejected by this Court. Goldberg v. Kelly, 397 U.S.

254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287, 295-6 (1970); Perry v.

Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.E.2d 570,

580 (1972); Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct.

518, 15 L.Ed.2d 447, 450 (1966). The Indiana statutes which pro-

vided for intestate inheritance gave Mrs. Phipps a claim of entitle-

ment to inherit unless she was disinherited by a valid will.

Property includes the right to acquire it. Buchanan v. Warley,

245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917); Holden v. Hardy,

169 U.S. 366, 391, i8 S.Ct. 383, 42 L.Ed. 780, 790 (1898). The

right to acquire property through inheritance and to protect such

right of inheritance by being able to contest an invalid will would

properly fall without the scope of such classification of property

and should be held entitled to the most fundamental due process

protection, notice reasonably calculated to reach her, before she

cculd lose the right to contest the will. The petitioner was given no

notice. The only notice was a published notice to the creditors of

the deceased and as to Petitioner it would be no more than a ges-

ture. I.C. § 29-1-7-7. Mullane v. Central Hanover Bank and Trust

Co., 339 U.S. 306, 314-5, 70 S.Ct. 652, 94 L.Ed. 865, 873-4

(1950).

The concept of property includes intangibie things. Fidelity &

Deposit Co. of Maryland v. Arenz, 290 U.S. 66, 68, 54 S.Ct. 16,

78 L.Ed. 176, 178 (1933). It includes things terminable at will such

as a right of occupancy under a tenancy at will. Dickman v. Com-

missioner of Internal Revenue, 465 U.S. 330, 336-7, 104 S.Ct.

1086, 79 L.Ed.2d 343, 350 (1984). The right to contest a will

which could result in the right to receive the estate of the deceased

falls within the scope of the concept of being property. The peti-

tioner was deprived of that nght without any notice of the pendency

of the estate.

It has often been held by this Court and other courts through-

out the nation that causes of actions do constitute a property right.

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-9, 102 S.Ct.

1148, 71 L.Ed.2d 265, 273 (1982). It has also been held that the

right of access to the courts of a potential litigant is also of constitu-

tional magnitude. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct.

780, 28 L.Ed.2d 113 (1971).

In this case, Mrs. Phipps was deprived of all right to challenge

the execution of the will which deprived her of the inheritance she

would otherwise have received. She was cut off from any opportu-

nity‘to challenge the conduct of the executrix who was the sole

beneficiary under such will in obtaining its execution. It cannot se-

riously be maintained that her right to litigate such a claim does not

constitute a property.right for due process purposes.

In this case no notice was given to Mrs. Phipps. Indiana law

expressly states that no notice is required. I.C. § 29-1-7-7. The

only ‘‘notice’’ given to Mrs. Phipps was newspaper publication of

notice to creditors. This Court has noted that publication has histor-

ically been the means of notice used when the person giving notice

does not really want to bring the matter to the attention of those

who are affected by the action he wishes to take. Mullane v. Cen-

tral Hanover Bank and Trust Co., supra. Due process considera-

tions cannot be measured in terms of dollars or hours of delay.

Taylor v. Hayes, 418 U.S. 488, 500, 94 S.Ct. 2967, 41 L.Ed.2d

897, 908 (1974). Here the address of Mrs. Phipps was know to the

personal representative and her attorney. The cost of giving person-

al notice to her as opposed to only notice by publication would

have been no more than that of a postage stamp.

A person who is a beneficiary under a will and is the personal

representative has no incentive to see that persons who are disinher-

ited by such will are notified of its probate. In fact they have an

incentive to do the minimum necessary in the hope that such disin-

herited heirs will not discover the probate of the will in time to

assert any infirmities with respect to the execution of such will just

as a personal representative who also takes by intestate secession

has an interest to conceal the existence of other heirs entitled to a

share of the estate. Cf. Altshuler v. Minkus-Whalen, 31

Mass App.Ct. 937, 579 N.E.2d 1369 (1991); Smith v. Estate of

King, 579 So.2d 1250 (Miss., 1991); Succession of Hearn, 412

So.2d 692 (La.App., 1982); Morris v. Mull, 110 Ohio St. 623, 144

N.E. 436 (1924). The attitude of the executrix and beneficiary was

clearly stated in her brief to the Court of Appeals of Indiana when

she said that: ‘‘Roberta Wilson did everything that was required of

her and gave all of the notices which were required by Indiana

law.’’ (Appellee’s brief p. 13 to the Court of Appeals of Indiana).

Other states have recognized by legislation that due process

requires actual notice to heirs so that they have a real opportunity to

contest wills that disinherit them. /n Matter Estate of Lawver, 86

Or.App. 711, 740 P.2d 1215, 1219 (1987). It has also been held

that an heir has more of a due process right to actual notification of

the probate of a will that cuts off his mght of inheritance than a

creditor would have to notice of the opening of the estate. Gano

Farms, Inc. v. Estate of Kleweno, 2 Kan.App.2d 506, 582 P.2d

742, 745 (1978). The Georgia Supreme has held that in order to

comply with due process, a probate statute had to be construed so

as to require that beneficiaries under a prior will which was revoked

by a later will were entitled to notice so they would be able to

contest the later will. Garner v. Harrison, 260 Ga. 866, 400

S.E.2d 925, 926-7 (1991).

This Court has held that principles of contract law serve as

useful guides in determining if a constitutionally protected property

interest exists. Jago v. Van Curen, 454 U.S. 14, 18, 102 S.Ct. 31,

70 L.Ed.2d 13, 17-8 (1981). A prospective right of inheritance may

be the subject of contract and transferred by an assignment and at

least in equity, the agreement will be enforced. Jaeger, Williston on

Contracts (3rd ed.) § 1681A at page 701.

The interest of an heir as next of kin has been characterized as

a property right and as a chose in action. Reardon v. Whalen, 306

Mass. 579, 29 N.E.2d 23 (1940). The ability to contest a will has

been held to be a legally protected interest and entitled to constitu-

tional protection. Palazzi v. Estate of Gardner, 32 Ohio St.3d 169,

512 N.E.2d 971 (1987). The interest of the Petitioner in her rela-

tive’s estate may not be stripped of due process protection by the

expediency of labeling it as an expectancy. The protection of due

process does not depend upon the type of property which is in-

volved. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S.

601, 608, 95 S.Ct. 719, 42 L.Ed.2d 751, 758 (1975). Property and

liberty interests are expansive and not frozen in time for purposes

of due process protection. Board of Regents of State College v.

Roth, 408 U.S. 564, 571-2, 92 S.Ct. 2701, 33 L.Ed.2d 548, 557

(1972). Permitting the right to contest a will to be lost where there

has merely been notice by publication of the probate of the will

because such interest is labeled a mere expectancy results in the

fossilization of the concept of what constitutes property and pre-

vents growth to accommodate the realties of life.

The fact that the Indiana Probate Code does not require notice

of the probate of a will to those who would have inherited if the

deceased died intestate does not mean that due process is satisfied.

As already covered, the right to contest a will is a species of prop-

erty for purposes of due process protection. Although well known

to the executrix, no notice was given to Mrs. Phipps, the person

who would inherit the substantial estate, approximately one-half

million dollars, except for the probate of a will of questionable va-

lidity. The only notice afforded being the obscure notice to credi-

tors by publication.

As stated above it is no answer to say that the Indiana statute

only required notice by publication and therefore due process is sat-

isfied. The contents of state statutes are not determinative of what

is required by due process. Hebert v. Louisiana, 272 U.S. 312, 47

S.Ct. 103, 71 L.Ed. 270 (1926). In Mennonite Board of Missions

v. Adams, 462 U.S. 791, 798-800, 103 S.Ct. 2706, 77 L.Ed.2d

180, 187-8 (1983) posted notice and notice by publication was the

only notice required by the Indiana statute to be given to mortga-

gees. Nonetheless it was held that there was a denial of due process

despite compliance with the requirements of the state statute which

permitted less reliable forms of notice which were not reasonable in

light of the inexpensive and more reliable alternatives such as mail

service that were available. The same conclusion is required here.

Notice only by publication to creditors did not satisfy due process

regardless of the requirements of the state statutes. To the extent

that the state statute permitted such_published notice to be sufficient

to cut off the right to contest a will, it should be held unconstitu-

tional as a denial of due process of law.

The theory that the Indiana probate code which does not re-

quire notice to disinherited heirs is a denial of due process has been

commented upon by Professor Debra A. Falender. An earlier work

by her, Notice to Creditors in Estate Proceedings: What Notice is

Due?, 63 N.C.L.Rev. 659 (1983) was cited by this Court repeated-

ly in Tulsa Collection Services, Inc. v. Pope, supra. She is also the

author of Henry's Indiana Probate Law and Practice (8th ed.). In

volume | of that treatise in § 307, she states:

In another situation, not expressly addressed by Pope, In-

diana’s absence of notice provision appears equally inade-

quate. Under I.C. 29-1-7-4, upon the probate of a will or the

filing of a petition seeking probate of a will, no notice at all is

to be given to heirs or to devisees under prior wills. If the

Mullane-Pope notice standard is applicable in probate pro-

ceedings, it would seem that known or ascertainable heirs,

who would be disinherited by that will, should be notified “*by

mail or other means as certain to ensure actual notice.’’ The

probate of the will is a judicial proceeding that will deprive the

heirs of an interest in the decedent’s estate if, in fact, the will

was invalid and the heirs do not contest the probate within the

Statutory time. If the heirs or other interested parties, fail to

initiate a contest with the contest period, their ability to con-

test is forever barred. The will contest period operates much

like a creditor non-claim provision. It has attributes of a statute

of repose or limitations, but it is not a self-executing statute of

limitations. It is instead a time period initiated by the court’s

adjudication of the validity of a will, which should be suffi-

cient state action to trigger the fourteenth amendment’s due

process requirements. Persons such as known or reasonably

ascertainable heirs, whose property interests are affected by

that court adjudication should be given notice, just as creditors

whose property interests are affected by the opening of admir-

istration of a decedent’s estate must be given notice of the pro-

ceeding that affects their rights. | Henry's Indiana Probate

Law and Practice at 121-2.

The reasoning of Professor Falender is much sounder than that

of the opinion at issue here.

The opinion by the Indiana Court of Appeals says that:

The interest vests, if at all, at death, (citation omitted), de-

pending on whether, under the laws of this state, the person is

entitled to a share in the estate. As already discussed, Phipps

is not entitled to a share in the estate under Indiana law, there-

fore, she has no protected property interests for the purpose of

her due process claim. 610 N.E.2d at 858.

It is respectfully submitted that this statement is circular and begs

the question. The only reason that Mrs. Phipps did not have a right

to share in the estate was because she did not receive notice of the

probate of the will so as to be enabled to file a timely will contest.

The opinion’s statement is akin to telling a mortgage holder on

property that was sold at tax sale that he has no night to complain

that he was not notified of the sale when the time to redeem or

protect such property has run because by then he had no property

interest left to protect. Mrs. Phipps was the next of kin of the de-

ceased. As such, she would inherit from the estate over $400,000 if

the deceased died intestate. 1.C. 29-1-2-1; Todd v. Ehresman, 132

Ind.App. 440, 175 N.E.2d 425 (1965).

A holding that actual notice to such a known person is re-

quired by due process eliminates or at least greatly reduces the pos-

sibilities of a person being able to profit from a will executed at his

request by a person of unsound mind. The petitioner in this case

wished to contest the will on the ground that the decedent lacked

mental capacity and was subjected to undue influence. The execu-

trix was the sole devisee under the will. The interest of the execu-

trix in keeping the probating of the will from the appellant is

apparent.

The burden of requiring actual notice to known persons who

are cut off by a will from the inheritance they would have received

had the decedent died intestate is not a heavy one. Section 3-705 of

the Uniform Probate Code imposes such a requirement. 8 U.L.A.

321-2. That code has been adopted by at least 15 states. 8 U.L.A.

1993 supp. p. 1. This Court has concluded that it is not an unrea-

sonable burden to require a search to be made for creditors of a

deceased to collect in order to give the creditors of the deceased the

notice required by due process before they loose their causes of

action to seek payment. Tulsa Collection Services, Inc. v. Pope,

supra. It would be much easier in the vast majority of cases to

locate the next of kin of a deceased who would take under intestate

secession than it is to locate all creditors. Yet the Court of Appeals

of Indiana found that it was proper to deny such next of kin notice

of the existence of a will which disinherits them so that they could

have an opportunity to contest the will and preserve their right of

inheritance. The decision that there was no denial of due process

should not be allowed to stand.

Conclusion

The Court should find that to the extent Indiana Code §§ 29-1-

7-4, 7 and 17 dispense with the requirement that notice be given to

the person who would inherit under intestate succession of the pro-

bate of a will are unconstitutional as a denial of due process of law.

Respectfully submitted,

fat ae

Danie! S. Davisson