Appendix — Phipps v. Wilson

STATE OF INDIANA IN THE MADISON CIRCUIT COURT

SS:

COUNTY OF MADISON TERM: 1992

CAusE No. 48C01-9012-ES-163

IN RE THE MATTER OF THE ESTATE OF

NELLIE MAY WILSON, DECEASED

ERMA JEAN PHIPPS,

Plaintiff

VS.

ROBERTA K. WILSON, Executrix of

the alleged Last Will and Testament

of the Deceased, Nellie May Wilson

ROBERTA K. WILSON,

Defendants

ORDER OF DISMISSAL

The plaintiff, Erma Jean Phipps, having filed her Complaint

To Contest The Will of Nellie May Wilson on December 27, 1991

and naming as defendants, Roberta K. Wilson, as Executrix and

Roberta K. Wilson, individually, and the defendants having filed

their Motion To Dismiss pursuant to Trial Rule 12 (B) (1) for the -

reason that the plaintiff filed her Complaint To Contest The Will

beyond the five (5) month period of the order admitting the Will to

probate which would require that the Complaint To Contest The

Will be filed on or before the | 1th day of May, 1991.

The plaintiff filed her Brief in Opposition To Defendants’ Mo-

tion To Dismiss on March 5, 1992 and the defendants filed their

Reply Brief In Support Of Defendants’ Motion To Dismiss on

March 12, 1992.

The Court set this matter for oral argument on the 8th day of

May, 1992 and during said argument, the plaintiff filed the Affida-

vits of Hobart Cliandler and Greg Gregory in support of plaintiff's

position.

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Te

Counsel for the defendants objected to the filing of said Affi-

davits on the basis that same were not relevant, not timely filed, not

subject to cross examination and expressed improper opinions and

improper conclusions of law and moved to strike, and the Court

took said motion under advisement.

The Court after considering its own records, the plaintiffs’

Complaint, Defendants’ Motion To Dismiss, Plaintiff's Brief In

Opposition To Defendants’ Motion To Dismiss and Defendants’

Reply Brief, now finds that plaintiff's Complaint To Contest The

Will should be dismissed as it was not timely filed within the five

(5) month period required by Indiana statutes.

The Court further finds that the plaintiff's allegation of fraud

was that the defendant exectrix failed to give notice to the plaintiff

of the decedent’s death; however, Indiana law did not require such

notice and the alleged fraud was not the proximate or efficient

cause of plaintitf’s failure to tmely commence her action against

the Estate.

The Court further finds that the Affidavits of Hobart Chandler

and Greg Gregory are not relevant, not timely filed and expressed

improper opinions and conclusions of law and should be striken.

THEREFORE IT IS ORDERED, ADJUDGED AND DE-

CREED BY THE COURT that the Affidavits of Hobart Chandler

and Greg Gregory, be, and hereby are, ordered striken from the

record and that plaintiff's Complaint To Contest Decedent's Will

be, and hereby is, ordered dismissed.

READ AND SIGNED IN OPEN COURT THIS 15 DAY OF

JUNE, 1992.

/s/ FREDRICK SPENCER, JUDGE

MADISON CIRCUIT COURT

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FOR

PUBLICATION

ATTORNEY FOR APPELLANT:

ATTORNEY FOR APPELLEE:

RICHARD F. DAVISSON

Davisson & Davisson, P.C.

Anderson, Indiana 46015

JOHN E. EISELE

Schuyler, Eisele & Lockwood

Anderson, Indiana 46016

IN THE

COURT OF APPEALS OF INDIANA

FIFTH DISTRICT

IN THE MATTER OF THE ESTATE OF

NELLIE MAY WILSON, DECEASED

ERMA JEAN PHIPPS,

Appellant-Petitioner

VS.

ROBERTA K. WILSON, EXECUTRIX

OF THE ALLEGED LAST WILL AND

TESTAMENT OF THE DECEASED,

NELLIE MAY WILSON; AND

ROBERTA K. WILSON,

Appellee-Defendant

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No. 48A05-9209-CV-329

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable Fredrick R. Spencer, Judge

Cause No. 48C01-9012-ES-163

BARTEAU, J.

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Nellie May Wilson died testate on December 6, 1990, leav-

ing all of her net estate, worth nearly $500,000, to Roberta Wil-

son (*‘Wilson’’), her niece by marriage. Wilson was named as

executrix of the estate. Nearly a year after the will was probated,

Erma Jean Phipps, Nellie’s natural niece, challenged the will, al-

leging that it was unduly executed, that it was obtained under

duress and by fraud; and that the decedent was of unsound mind

when the will was executed. The trial court granted Wilson’s mo-

tion to dismiss Phipps’ complaint because it was not filed within

five months after the will was probated. Phipps appeals, raising

the following issues:

I. Whether the trial court abused its discretion in quash-

ing Phipps’ subpoena to depose Wilson;

II. Whether the trial court erred by striking affidavits

filed by Phipps in opposition to Wilson’s motion to

dismiss;

II. Whether the trial court erred in dismissing the will

contest; and

IV. Whether Ind.Code 29-1-7-4 is unconstitutional.

We affirm.

FACTS

On March 13, 1990, Robert Chandler, an investigator for

Adult Protective Services, petitioned the Madison Superior Court

for guardianship of Nellie’s estate. The petition alleged that Nellie

was unable to care-for-her finanetal affairs, that she suffered from

periods of confusion and that she had poor short-term memory.

Chandler estimated Nellie’s estate to be worth about $300,000.

Both Wilson and Phipps are listed on the petitioner [sic] as Nellie’s

nieces; however, Wilson is a niece by marriage and Phipps is Nel-

lie’s ‘‘natural’’ niece.' The petition for guardianship was supported

by a letter from Dr. Begley, who stated that he examined Nellie and

recommended that a guardian be appointed to handle her affairs.

There is nothing in the record to indicate that a guardian was in fact

appointed or that Nellie was found to be incompetent.

' It is not clear from the record whether Nellie had any other living relatives.

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a a aN Sen aN TE ET ee |

Nellie died on December 6, 1990. On December 11, 1990,

Wilson petitioned for probate of Nellie’s will and for the issuance

of letters testamentary. Nellie’s will was executed on March 16,

1990, three days after the petition for guardianship was filed. The

court granted Wilson’s petition on December 11.

Phipps filed her complaint challenging the will on December

27, 1991, over a year after the will had been probated. Wilson

moved to dismiss the complaint for lack of subject-matter jurisdic-

tion over the dispute. Before the hearing on Wilson’s motion,

Phipps subpoenaed Wilson to appear for deposition. Wilson moved

to quash the subpoena and for a protective order preventing further

attempts at discovery. The court granted Wilson’s motion to quash,

but took the request for a protective order under advisement. After

a hearing, the court granted Wilson’s motion to dismiss.

DISCOVERY

Phipps argues that the trial court abused its discretion when it

limited her ability to conduct pre-trial discovery. She argues that

discovery was necessary to defend against Wilson’s motion to dis-

miss. Wilson argues that the trial court did not abuse its discretion

in quashing the subpoena.

Indiana Trial Rule 26(C) grants the trial court discretion to

make any order to protect a party from annoyance, embarrassment,

oppression, or undue burden or expense. The trial court has broad

discretion in ruling on a motion for such an order, and this court

will interfere with the trial court’s order only if an abuse of discre-

tion is shown. Geib v. Estate of Geib (1979), 182 Ind.App. 377,

395 N.E.2d 336, 338.

Phipps cites Templin v. Erkekedis (1949), 119 Ind.App. 171,

84 N.E.2d 728, a malpractice action, in support of her argument

that she should have been permitted to conduct discovery in the

manner she chose. In Templin, this court held the trial court abused

its discretion in granting plaintiff's request for an order protecting

her from a physical examination requested by the defendant doctor.

According to the court, it was an abuse of discretion to deny the

defendant the only means of disproving plaintiff's claims of mal-

practice. Here, however, Phipps does not argue that the only way

to obtain the sought-after information is through a deposition.

Phipps had other means of discovery available, see T.R. 26, none

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of which she pursued. Therefore, we find no abuse of discretion

See, Geib, 182 Ind.App. 377, 395 N.E.2d 336.

AFFIDAVITS

In support of her opposition to Wilson’s motion to dismiss,

Phipps submitted the affidavits of Hobart Chandler, an investigator

for Adult Protective Services who filed the guardianship petition,

and of Greg Gregory, an officer of Star Financial Bank. Chandler

averred that he was informed that Nellie had been found wandering

the streets of Anderson. According to Chandler, when he visited

her in her home, Nellie did not know the day of the week and she

was confused. (R. 164). Greg Gregory assisted Chandler in assess-

ing Nellie’s financial situation. He averred that when he talked to

Nellie at her home, she was confused and had no idea of the value

of her assets. The court granted Wilson’s motion to strike the affi-

davits because they ‘‘are not relevant, not timely filed and ex-

pressed improper opinions and conclusions of law.”’ (R. 178).

The trial court may use affidavits in order to determine the

existence or non-existence of facts which would bring the action

within the court’s subject-matter jurisdiction. Cooper v. County

Board of Rev. of Grant County (1971), 150 Ind.App. 232, 276

N.E.2d 533. However, we agree with the trial court that the affida-

vits were not relevant to the motion to dismiss. Wilson argued that

the court lacked subject-matter jurisdiction because Phipps’ com-

plaint was filed over five months after the will had been admitted to

probate. Phipps countered by arguing that this time period should

be tolled because Wilson fraudulently failed to inform Phipps of

Nellie’s death. The affidavits—which were addressed to Nellie’s

state of mind—are not relevant to the issue of whether Wilson acted

fraudulently.

MOTION TO DISMISS

Phipps argues that the trial court erred in dismissing her com-

plaint because Wilson's fraudulent actions tolled the running of the

five-month period in which a will contest may be filed. Phipps al-

leges two instances of fraud: 1) Wilson’s failure to notify Phipps,

Nellie’s only living blood relative, of Nellie’s death; and 2) Wil-

son’s fraud in inducing Nellie to leave her entire estate to Wilson.

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Wilson argues that she was not required by law to give notice to

Phipps; therefore, her inaction could not be considered fraud.

Pursuant to Ind. Code 29-1-7-17, any interested person may

contest a will within five months after the date of the order admit-

ting the will to probate. The right to contest a will is statutory, and

if it is not exercised within the allotted time period, it is lost. Mar-

ter of the Estate of Brown (1992), Ind.App., 587 N.E.2d 686; Es-

tate of Niemiec v. Niemiec (1982), Ind.App., 435 N.E.2d 999. The

five month limit prescribed by the statute is jurisdictional. Niemiec,

435 N.E.2d at 1001. Generally, failure to file a will contest within

the five months will result in dismissal. /d. Dismissal will not re-

sult, however, where a plaintiff has been induced to refrain from a

timely filing by a fraudulent misrepresentation of the defendant.

Id.; Carrell v. Ellingwood (1981), Ind.App., 423 N.E.2d 630.

‘‘The fraudulent conduct must have been the efficient cause of the

failure to timely commence the action, and all the other elements

entitling the plaintiff to equitable relief must be present.”’ Carrell,

423 N.E.2d at 635. Thus, in order to defeat Wilson’s motion to

dismiss based on fraudulent conduct, Phipps had the burden to

show Wilson acted fraudulently and that the fraudulent conduct was

the cause of her failure to timely file the complaint.

The elements of actionable fraud are: 1) material misrepresen-

tations of past or existing facts; 2) which misrepresentation is made

with knowledge or reckless ignorance of the falsity; 3) which

causes reliance to the detriment of the person relying. /d. Fraud

may not be predicated on the nonperformance of acts which the

defendant is not bound by law to do. First Nat'l Bank of New Cas-

tle v. Acra (1984), Ind.App., 462 N.E.2d 1345.

Indiana Code 29-1-7-5 provides, in relevant part:

A petition for the probate of a will and for the issuance of

letters testamentary or for the appointment of an administrator

with the will annexed, or for the appointment of an administra-

tor, shall state:

(2) The name, age and place of residence of each heir, in the

event the decedent left no will; and the name, age and place of

residence of each legatee and devisee, in the event the dece-

dent left a will, so far as such are known or can with reason-

able diligence be ascertained by the personal representative;

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(emphasis supplied). Under I.C. 29-1-7-7(b), the clerk of the court

must then serve notice, by mail, of the estate administration to each

heir, devisee, legatee, and known creditor “‘whose name and ad-

dress is set forth in the petition for probate or letters.”

Nellie left a will; therefore, Wilson was required to list only

the legatees and devisees named in the will. Phipps is not a devisee

or legatee of Nellie’s will and Wilson was not required to list her in

the petition for probate. Therefore, Wilson’s failure to notify

Phipps of Nellie’s death cannot be considered fraudulent. Acra,

462 N.E.2d 1368. Further, there is no evidence that this alleged

fraud was the proximate cause of Phipps’ failure to timely file her

complaint. In fact, Phipps admits that she was unable to file a com-

plaint because of a serious illness and subsequent hospitalization.

Phipps also argues that Wilson committed fraud in inducing

Nellie to leave her entire estate to Wilson. She alleges that Wilson

induced Nellie to believe Wilson was the natural object of Nellie’s

bounty. Even if Wilson did commit fraud relating to the execution

of the will, this allegedly fraudulent conduct is in no way related to

Phipps’ failure to timely file her complaint. See Niemiec, 435

N.E.2d at 1001.

DUE PROCESS

Phipps argues that I.C. 29-1-7-4 is unconstitutional because it

does not require notice to the decedent’s heirs that the will has been

admitted to probate. Phipps argues that she was entitled to notice

because, as Nellie’s only natural heir, she should have been able to

contest the will. Further, she points out that her name and address

were listed on the guardianship petition; therefore, Wilson and her

attorney knew that Phipps was an heir. According to Phipps, be-

cause she did not receive notice, she was denied due process under

the Fourteenth Amendment to the United States Constitution. Wil-

son argues that Phipps waived this issue by failing to comply with

1.C. 34-4-10-11, which requires anyone seeking to have a statute

declared void as unconstitutional must serve the Attorney General.

Alternatively, Wiison argues that Phipps, who was not named in

Nellie’s will, was not entitled to notice and was not denied due

process.

We will first address Wilson’s waiver argument. I.C. 34-4-10-

11, cited by Wilson in support of this argument is part of the Uni-

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form Declaratory Judgment Act and is not intended to apply to

other civil proceeding. See State v. Black (1978), 177 Ind.App.

588, 380 N.E.2d 1261. As Phipps does not seek declaratory judg-

ment, she was not required to serve notice on the Attorney General

before attacking the constitutionality of I.C. 29-1-7-4.

When faced with a challenge to the constitutionality of a stat-

ute, we presume the statute is constitutional. This presumption con-

tinues until clearly overcome by a showing to the contrary. Miller

v. State (1987), Ind., 517 N.E.2d 64; Garrod v. Garrod (1992),

Ind.App., 590 N.E.2d 163. Indiana Code 29-1-7-4 permits any in-

terested person or a personal representative named in the will to

petition the court 1) to have a will probated; 2) for the issuance of

letters testamentary; 3) for the appointment of an administrator if no

executor is named in the will; or 4) for the appointment of an ad-

ministrator if the decedent died intestate. This statute also provides:

No notice that a will 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 de-

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

person.

Phipps contends the ‘‘no notice’’ provision is unconstitutional.

We note that I.C. 29-1-7-4 is not the only notice provision in

our probate code. As previously discussed, a petition for probate

and for letters testamentary filed pursuant to I.C. 29-1-7-4 must

include, among other things, the ‘‘name, age and place of residence

of each heir, in the event the decedent left no will; and the name,

age and place of residence of each legatee and devisee, in the event

the decedent left a will, so far as such are known or can with rea-

sonable diligence be ascertained by the personal representative.”’

I.C. 29-1-7-5. As soon as letters testamentary or of administration

have been issued, the clerk of the court must send notice to each

heir, devisee, legatee and known creditor whose name and address

are set forth in the petition. I.C. 29-1-7-7.

There is, however, no requirement in the probate code that

notice be given to descendants, such as Phipps, who would be enti-

tled to an intestate distribution but who have not been named in the

will. Therein lies the rub. Phipps argues that because she would be

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entitled to an intestate distribution if the will were set aside, her

right to contest the will is a property interest protected by the Four-

teenth Amendment to the United States Constitution. As such, she

was entitled to notice before she was deprived of that interest by

virtue of the tolling of the five-month limitation of I.C. 29-1-7-17.

The Fourteenth Amendment prohibits any state from depriving

‘‘any person of life, liberty, or property, without due process of

law.’’ Thus, one claiming a violation of due process must show 1)

that there has been state action and 2) that a protected property

interest is involved. Board of Regents v. Roth (1972), 408 U.S.

564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Dunlap v. Cross (1980),

Ind.App., 403 N.E.2d 885.

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The question of whether the state’s involvement with non-

claim statutes, such as I.C. 29-1-7-17, is sufficient to implicate

State action was addressed by the United States Supreme Court in

Tulsa Prof. Collec. Services, Inc. v. Pope (1988), 485 U.S. 478,

108 S.Ct. 1340, 99 L.Ed.2d 565. At issue in Pope was whether

creditors of an estate, who made a claim against the estate after the

time period for such had expired, were entitled to personal notice

that the estate was being administered. According to the Court,

State action occurs because the nonclaim statute of the probate code

is Operative only after there has been significant state involvement,

in particular, an application to the court to admit the will to probate

and an order admitting the will to probate. Thus, the state action,

through the legal proceedings, triggers the start of the time in which

the action must be brought. This involvement is significant and is

sufficient state action to implicate the due process clause. /d.

The next question is whether Phipps has a protected property

interest. She claims that her right to contest the will is a legally

protected interest. Wilson argues that Phipps had only an expectan-

cy interest, which is not entitled to constitutional protection.

‘*Property interests, for the purpose of due process claims, are de-

termined by reference to state law.’’ Lohorn v. Michal (7th Cir.

1990), 913 F.2d 327. The property interest may arise from statute,

ordinance or contract. Dunlap, 403 N.E.2d 885.

Phipps does not cite any authority to support her claim that her

right to challenge the will is a protected property interest, nor do we

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find any such authority.? Phipps has therefore failed to meet her

burden of overcoming the presumption of constitutionality.

? Phipps does cite several cases from the United States Supreme Court in

support of her argument; however, none of them are in point: In Tulsa Prof. Col-

lec. Serv. v. Pope (1988), 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565, the

Court held that known and reasonably ascertainable creditors of an estate are enti-

tled to actual notice of the administration of the estate. In Schroeder v. New York

(1962), 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255, the Court held that the peti-

tioner was denied due process because she did not receive notice that her property

was being condemned. Although she did not live on the property, her name and

address were easily ascertainable from the county records. Boddie v. Connecticut

(1971), 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, holds that indigents may not

be denied access to the courts to obtain a divorce based solely on their inability to

pay court costs and fees. Mullane v. Central Hanover Bank & Trust (1950), 339

U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, holds that known beneficiaries of trust

funds were entitled to personal notice that the trustee sought judicial settlement of

the trust accounts. The Court also held that notice by publication was sufficient to

notify beneficiaries whose interest or whereabouts could not with due diligence be

ascertained and as to those whose interests were conjectural or future. It should be

noted that in all of these cases, the interest involved was a present, vested interest.

Phipps also cites the following cases from other jurisdictions: Pallazzi v.

Estate of Gardner (1987), 32 Ohio St. 3d 169. 512 N.E.2d 971; Smith by Young v.

Estate of King (1991), Miss., 579 So.2d 1250; In re Estate of Barnes (1973), 212

Dan. 502, 512 P.2d 387.

In Palazzi (1987), 32 Ohio St. 3d, 512 N.E.2d 971, the court stated in dicta

that the ‘‘ability to contest the will clearly amounts to a ‘legally protected interest’

entitled to constitutional protection.’* /d. at . 512 N.E.2d at 974. However,

the issue was whether a named beneficiary of the decedent's will who did not live

in Ohio was entitled to personal notice. The court held that Pallazzi had no stand-

ing to attack the statute because he had failed to allege facts to show that he did not

receive actual notice of the decedent's death.

Smith by Young, 579 So.2d 1250, involved intestate administration. The de-

cedent’s widow, the administratrix of the estate, neglected to inform the court that

her late husband had a child born out of wedlock. The child sued the estate to have

paternity established beyond the ninety-day period after the decedent's death in

which paternity could be established. The court permitted the paternity action,

opining that the child would be entitled to an intestate share and the administratrix,

who knew of the existence of the child, had a duty to use reasonable diligence to

inform the court of the potential heirs.

The facts in the Estate of Barnes, 212 Kan. 502, 512 P.2d 387, are some-

what similar to the facts here in that the decedent left his estate to non-relatives.

However, unlike Indiana law, Kansas law requires the administrator to name all of

the known “‘heirs at law,’ devisees and legatees, in the petition for probate. The

administrator named two of the ten “heirs at law’’ in the petition along with the

devisees. The administrator later informed the court of the names and addresses of

some of the other relatives. The relatives who were not named complained, and

All

We note that throughout her argument, Phipps refers to herself

as Nellie’s ‘‘heir.’’ In Indiana, an “‘heir’’ is defined as ‘*those per-

sons inciuding the surviving spouse, who are entitled under the

statutes of intestate succession to the real and personal property of a

decedent on the decedent’s death intestate, unless otherwise defined

or limited by will.”’ 1.C. 29-1-1-3. Because Phipps was not named

in the will, she is not an heir to Nellie’s estate.

It has long been held in Indiana that the right to take property

by devise and descent is a creature of statute. Donaldson v. State

(1913), 182 Ind. 615, 101 N.E. 485. During the life of the dece-

dent, the interest in the estate, for those who would take by intes-

tate succession as well as those named in the will, is a mere

expectancy interest, Scott v. Scott (1958), 238 Ind. 474, 150

N.E.2d 740, not entitled to constitutional protection. Board of Re-

gents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d

548. The interest vests, if at all, at death, Donaldson, 182 Ind. 615,

101 N.E. 485, depending 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;

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

her due process claim.

The decision of the trial court is AFFIRMED.

SHARPNACK, C.J. and CHEZEM, J. CONCUR

(Footaote Continued)

the court held that under Kansas |aw the **known heirs at law’’ included only

those heirs whose existence and whereabouts could be reasonable ascertained.

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