Aug 29 2013, 5:35 am
FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
D. ERIC NEFF ROBERT G. BERGER Crown Point, Indiana Highland, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TRUST OF ) DOROTHY RHOADES ) ) ROBERT KUTCHINSKI and ) SHELIA GRAVES, ) f/k/a SHELIA KUTCHINSKI, ) ) Appellants-Petitioners, ) ) vs. ) No. 45A03-1206-TR-296 ) JOSEPH STRAZZANTE and ) MONTY STRAZZANTE, CO-TRUSTEES, ) ) Appellees-Respondents. )
APPEAL FROM THE LAKE CIRCUIT COURT The Honorable George C. Paras, Judge Cause No. 45C01-1009-TR-9
August 29, 2013
OPINION – FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
This appeal involves a family dispute between half-siblings—Robert Kutchinski
(“Robert”), Sheila Graves f/k/a Sheila Kutchinski (“Sheila”), John Kutchinski (“John”),
Joseph Strazzante (“Joseph”), and Monty Strazzante (“Monty”)—over the revocable
living trust (“the Trust”) created by their mother, Dorothy Rhoades (“Dorothy”). When
Dorothy initially created the Trust in 2003, she included all her children as beneficiaries.
In July 2010, eleven days before her death, Dorothy amended the Trust and other estate
planning documents to exclude Robert as a beneficiary after Joseph contacted Dorothy’s
attorney regarding changes to be made to the Trust.
After Dorothy’s death, Robert filed a petition to docket the Trust and to determine
the Trust’s beneficiaries, alleging that Dorothy lacked testamentary capacity and was
under the undue influence of Joseph when she amended the Trust and other estate
planning documents. Joseph and Monty filed a motion for summary judgment, arguing
that there were no genuine issues of material fact regarding testamentary capacity and
undue influence and that they were entitled to judgment as a matter of law. Robert,
Sheila, and John filed a joint summary judgment response, arguing that there were
genuine issues of material fact regarding whether Dorothy was of sound mind and under
undue influence at the time she amended the Trust in July 2010. The trial court granted
the summary judgment motion. Robert now appeals the trial court’s order granting
Joseph and Monty’s motion for summary judgment.1
1 Robert, alone, commenced the underlying action challenging the July 2010 amendment to the Trust. Later, Sheila, who was represented by the same attorney as Robert, joined Robert in various pleadings, including the summary judgment response. Sheila was removed as a beneficiary from the Trust in 2 We reverse and remand.
ISSUES
1. Whether the trial court’s summary judgment order was a final, appealable order.
2. Whether the trial court erred by granting summary judgment to Joseph and Monty on the issues of testamentary capacity and undue influence.
FACTS
The facts considered in a light most favorable to Robert, the nonmoving party,
follow. Dorothy had five children as a result of her first two marriages. On June 23,
2003, Dorothy executed the Trust, naming her natural born children—Robert, Sheila,
John, Joseph, and Monty—as beneficiaries of the Trust.2 Dorothy named her third
husband, Elmer Rhoades (“Elmer”), as trustee and named Joseph and Robert as successor
co-trustees of the Trust.3
On January 23, 2010, Dorothy was hospitalized with a kidney failure and placed in
the intensive care unit (“ICU”). While Dorothy was in the ICU, Joseph—on his own
initiative—obtained a power of attorney form from the internet and sought to have
February 2010, and there has been no challenge to that amendment. While both Robert and Sheila are named in the notice of appeal, we will collectively refer to them as “Robert” when discussing arguments made in this appeal. Additionally, John appeared in the case below, joined in Robert and Sheila’s summary judgment response, and participated in the summary judgment hearing, arguing that the trial court should deny Joseph and Monty’s motion for summary judgment. John, however, did not join in Robert and Sheila’s notice of appeal and has not filed an appearance or a brief with this Court. Nevertheless, John is a party to this appeal. See Ind. Appellate Rule 17(A) (explaining that “[a] party of record in the trial court . . . shall be a party on appeal.”) 2 Dorothy did not name her son by marriage, Kenneth Rhoades (“Kenneth”), as a beneficiary of the Trust and included a provision explaining that failure to provide a distribution to Kenneth was “intentional.” (App. 18). 3 Elmer had died on September 29, 2003. 3 Dorothy sign the power of attorney. On January 25, 2010, a hospital social worker,
Carolyn Davis (“Davis”), was in Dorothy’s room when Joseph tried to have Dorothy sign
the power of attorney form. Davis, believing that Dorothy was confused and not able to
understand what she was signing, prevented Joseph from having Dorothy sign the form.
The following day, on January 26, 2010, Joseph went back to the hospital and had
Dorothy sign a power of attorney, naming him as the sole attorney-in-fact. Robert
walked into Dorothy’s room and confronted Joseph about the form, but Joseph did not
show Robert the form.
On January 28, 2010, Dorothy was moved from the ICU to a private room at the
hospital. While Joseph and Robert were in Dorothy’s room, Joseph showed the power of
attorney form to Robert, and they discussed it with Dorothy. Robert explained to
Dorothy about the power of attorney form, and Dorothy apparently indicated that she
wanted both Robert and Joseph to be joint attorneys-in-fact and to act together.
Thereafter, Robert contacted attorney Daniel Blaney (“Attorney Blaney”), who
was a partner of Dorothy’s attorney who had retired. Subsequently, Attorney Blaney
drafted an amended power of attorney and met with Dorothy, Robert, and Joseph at the
hospital on February 4, 2010. Attorney Blaney talked to Dorothy about the amended
power of attorney. Dorothy executed the amended power of attorney that named Robert
and Joseph as joint attorneys-in-fact to make financial and personal decisions for her.
The power of attorney became effective upon execution.
Around that same time, Dorothy also amended the Trust. The amendment to the
Trust was also prepared by Attorney Blaney. Dorothy amended the Trust by naming
4 Joseph and Robert as co-trustees of the Trust. Dorothy also “specifically omitted” Sheila
as a beneficiary of the Trust. (App. 20). The Trust was signed by Dorothy as grantor and
by Robert and Joseph as co-trustees. Additionally, Dorothy amended her beneficiary
designations on her life insurance policies and excluded Sheila as a beneficiary, leaving
the four sons as beneficiaries. Dorothy also amended her will to include a provision that
provided for Sheila and John to each receive $5,000 for mental health care.
After Dorothy was released from the hospital, she had to get frequent dialysis
treatments at her doctor’s office. Dorothy first lived with Monty from February 25, 2010
to March 18, 2010. While Dorothy lived with Monty, Robert helped take Dorothy to her
dialysis treatments. On March 18, 2010, Robert took Dorothy to her dialysis treatment
and later discovered that Monty had left Dorothy’s belongings on Monty’s front porch.
From March 18, 2010, to July 1, 2010, Dorothy lived at Robert’s house. While
Dorothy lived at Robert’s house, she had a surgery to change the type of dialysis that she
received. Her dialysis treatments were increased to a daily basis and then done at home
instead of at the doctor’s office. The family was required to receive training to assist
Dorothy with her dialysis. Dorothy’s doctor also had a family meeting with Dorothy’s
children to explain that they needed to assist Robert in administering Dorothy’s dialysis.
While Dorothy lived at Robert’s house, her primary medications were Tramadol and
Xanax.
On July 1, 2010, Dorothy returned to her own home and was assisted by two
healthcare providers, Wanda Kessler (“Caretaker Kessler”) and Edith Lucas (“Caretaker
Lucas”), while at her home. From July 7 to July 12, 2010, Dorothy was hospitalized with
5 abdominal pain. Upon Dorothy’s discharge from the hospital, she received prescriptions
for Tramadol and Alprazolam and returned to her own home.
A few days later, Dorothy fell at her house and was again hospitalized. After her
release from the hospital, Dorothy was taking the following medications: Tramadol,
Hydrocodone, Xanax, Furosemide, Prochlorperazine, and Exforge. Around this time,
Dorothy stopped her dialysis, and Caretaker Kessler and Caretaker Lucas stopped
providing healthcare to Dorothy. Monty then hired Anita Ray (“Caretaker Ray”) as
Dorothy’s healthcare provider.
On July 26, 2010, Joseph went to visit Dorothy. Joseph had not seen Dorothy for
a few months. Two days later, on July 28, 2010, Joseph contacted Attorney Blaney and
told him that Dorothy wanted to amend the Trust, the power of attorney, and her will.
Attorney Blaney prepared amendments to these documents and met with Dorothy at her
house on July 29, 2010. Dorothy amended her power of attorney to remove Robert as an
attorney-in-fact and to name Joseph as her sole attorney-in-fact with power to act for her
in all financial and personal matters.
In the amendment to the Trust, Dorothy “specifically omitted” Robert as a
beneficiary of the Trust. (App. 22). Dorothy also excluded Sheila. Thus, the only
children that were beneficiaries of Dorothy’s trust were Joseph, Monty, and John.
Dorothy also amended the Trust by removing Robert as a co-trustee and naming Joseph
and Monty as co-trustees. The Trust was signed by Dorothy as grantor and by Joseph
and Monty as co-trustees. That same day, Dorothy also executed change of beneficiary
6 forms for various life insurance policies, excluding Robert as a beneficiary. Additionally,
Dorothy also amended her will, naming Joseph and Monty as co-personal representatives.
Eleven days after she amended the Trust, on August 9, 2010, Dorothy died. On
September 16, 2010, Robert filed a Petition to Docket Trust and to Determine
Beneficiaries. In his petition, Robert alleged that Dorothy lacked testamentary capacity
and was under the undue influence of Joseph at the time she executed the amendments.
Robert requested a hearing “to determine the validity of the execution of the amendments
to the [Trust]; the powers of attorney, wills and any and all other estate planning
documents[.]” (App. 11).4
On September 21, 2010, Robert filed a motion for a temporary restraining order,
requesting that Joseph and Monty be enjoined from disposing of the proceeds from two
life insurance annuities—one in the amount of $100,000.00 and the other for
$38,000.00—“due to the fact that the beneficiaries were changed less than ten days prior
to [Dorothy’s] death[.]” (App. 29).5 In the motion, Robert contends that he and Sheila
will suffer irreparable injury if an injunction is not issued.
Thereafter, the parties entered into a stipulated preliminary injunction and order,
agreeing that the proceeds from the life insurance annuities—of which Joseph, Monty,
and John were beneficiaries—would not be distributed. They also agreed that all parties
were enjoined from disposing of any of Dorothy’s assets or proceeds from the Trust.
4 There is no information in the record regarding whether Dorothy’s will was ever probated. 5 Robert’s motion indicates that it has an Exhibit A attached to it, but that exhibit is not included in Appellant’s Appendix.
7 On November 22, 2011, Joseph and Monty filed a motion for summary judgment,
alleging that there were no issues of material fact regarding whether Dorothy was of
unsound mind. Neither Joseph and nor Monty executed an affidavit to include in their
designated evidence; instead, they relied on a deposition of Attorney Blaney. They also
argued that there was no issue of material fact regarding undue influence, relying simply
on their argument that Dorothy was of sound mind.
Thereafter, John retained an attorney and joined with Robert and Sheila in
responding to Joseph and Monty’s motion for summary judgment. In their summary
judgment response, they argued that there were genuine issues of fact that precluded
summary judgment. They submitted designated evidence, including various affidavits to
show that there was an issue of fact regarding Dorothy’s testamentary capacity,
especially in light of the medications that she was taking around the time that she
amended the Trust, and an issue of fact regarding undue influence.
On March 22, 2012, the trial court held a summary judgment hearing.6 During the
hearing, John’s attorney and Robert and Sheila’s attorney argued that summary judgment
was not appropriate because there were genuine issues of material fact regarding
testamentary capacity and undue influence. At the end of the hearing, the trial court took
the summary judgment matter under advisement.
On June 4, 2012, the trial court issued an order granting Joseph and Monty’s
motion for summary judgment. The trial court’s order provided that “[t]here are no
6 During the hearing, the trial court also heard argument regarding Robert’s show cause petition, which alleged that Joseph and Monty had violated the trial court’s injunctive order. At the end of the hearing, the trial court denied Robert’s show cause petition.
8 material issues of fact herein as to either the capacity of or any undue influence over
Dorothy Rhoades on the date and time of the execution of her estate planning documents”
and that “[t]he Trustees [Joseph and Monty] are entitled to judgment as a matter of law.”
(App. 8). Robert now appeals.
After the notice of appeal was filed in this case, some procedural motions were
filed and corresponding orders issued. For example, following Joseph and Monty’s filing
of a motion to remove the Trust from the docket, the trial court held a hearing and then
issued an order removing the Trust from the docket and closing the court’s file.
Additionally, prior to filing an appellate brief, Robert filed with this Court a
motion to stay the proceedings and to enforce the trial court’s orders enjoining Joseph
and Monty from disposing of assets pending this appeal. This Court’s motions panel
granted Robert and Sheila’s stay motion and, pursuant to Indiana Appellate Rule 18, set
an appeal bond in the amount of $25,000.00.
Finally, after briefing was completed, Joseph and Monty filed a motion to dismiss
this appeal and to vacate the stay because Robert had not paid the appeal bond. This
Court’s motions panel denied Joseph and Monty’s motion. We now address the issues in
this appeal.
DECISION
1. Jurisdiction
Before turning to the issue of whether summary judgment was appropriately
granted, we address Joseph and Monty’s cross-appeal argument that our Court lacks
jurisdiction based on their allegation that the trial court’s summary judgment order was
9 not a final judgment. Specifically, they contend that the trial court’s order granting
summary judgment was not a final order because the trial court did not close the trust
case and remove the case from the trust docket when it granted summary judgment.
On the other hand, Robert and Sheila contend that the trial court’s order granting
summary judgment to Joseph and Monty was a final judgment because it completely
disposed of Robert’s petition to docket the Trust and challenge thereto.
This Court has jurisdiction in all appeals from final judgments. Ind. Appellate
Rule 5(A). A “final judgment” is one which “disposes of all claims as to all parties[.]”
App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct. App.
2002) (explaining that a final judgment is one that “disposes of all issues as to all parties,
to the full extent of the court to dispose of the same, and puts an end to the particular case
as to all of such parties and all of such issues” and “reserves no further question or
direction for future determination” (citations and internal quotations omitted)). For an
order to be a final judgment under Appellate Rule 2(H)(1), the order “must dispose of all
issues as to all parties, ending the particular case and leaving nothing for future
determination.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (citing Georgos v.
Jackson, 790 N.E.2d 448, 451 (Ind. 2003), reh’g denied).
To support their argument that trial court’s summary judgment order was not a
final judgment, Joseph and Monty rely on In re Estate of Botkins, 970 N.E.2d 164 (Ind.
Ct. App. 2012). In the Botkins case, one of the parties filed a motion to set aside a
settlement agreement in an estate case that had already been opened. Id. at 165-66. The
trial court denied the motion and then certified its order for interlocutory appeal. Id.
10 Our Court, however, denied the party’s motion to accept jurisdiction over the
interlocutory order. Id. Thereafter, the trial court entered an order “purporting” to make
the interlocutory order “final and appealable.” Id.
When the party then returned to our Court to appeal the order, we explained that
the trial court’s order was not a final judgment under Appellate Rule 2(H)(1) because it
did not put an end to the estate case. Id. We discussed the fact that the estate case
remained open and that “orders issued by a probate court are not final until the estate is
closed.” Id. at 167 (citing Dawson v. Estate of Ott, 796 N.E.2d 1190, 1194 n.2 (Ind. Ct.
App. 2003)).7
Unlike Botkins, where the appealed order disposed of a motion within an already
existing estate case but did not end the case or leave nothing for further determination,
here, the trial court’s order from this trust case was a final judgment. Robert commenced
the underlying trust proceeding by filing a petition to docket the Trust and to determine
beneficiaries. In his petition, Robert alleged that Dorothy had executed the July 2010
amendment to the Trust “under duress and the undue influence of Joseph” and that her
“medical condition” rendered her “unaware and unable to determine the contents of said
amendments at the time she executed [the] same.” (App. 11). Joseph and Monty filed a
summary judgment motion, specifically arguing that there were no genuine issues of fact
regarding testamentary capacity and undue influence. On June 4, 2012, the trial court
issued an order granting summary judgment, determining that “[t]here were no material
issues of fact herein as to either the capacity of or any undue influence over Dorothy 7 We ultimately dismissed the Botkins appeal because the trial court’s order did not use the “magic language” of Trial Rule 54(B). 11 Rhoades on the date and time of the execution of her estate planning documents” and that
Joseph and Monty were “entitled to judgment as a matter of law.” (App. 8). Thereafter,
on June 14, 2012, Joseph and Monty filed a motion to remove the Trust from the docket.
The notice of appeal was then filed on June 27, 2012. After holding a hearing on Joseph
and Monty’s motion, the trial court, on September 13, 2012, issued an order removing the
Trust from the docket and closing the court’s file, noting that there were “no pending
issues” in the case. (App. 382).
Robert is appealing the grant of summary judgment, which is a final judgment
because it disposed of all claims as to all parties. See Ind. Appellate Rule 2(H)(1). See
also In re Guardianship of Phillips, 926 N.E.2d 1103, 1106 (Ind. Ct. App. 2010) (holding
that the trial court’s judgment was a final judgment and explaining that it was
“immaterial” that the guardianship case remained open where no other issues raised in
the pleadings were at issue); Keck v. Walker, 922 N.E.2d 94, 99 (Ind. Ct. App. 2010)
(holding that trial court’s order was a final, appealable judgment where it had the effect
of disposing of all issues as to all parties). The only issues raised in Robert’s petition to
docket the Trust were disposed of by the trial court’s grant of summary judgment to
Joseph and Monty, and it is immaterial that the trial court did not remove the trust case
from the docket when it entered the summary judgment order. Because the trial court’s
summary judgment order is a final judgment, we will proceed to our appellate review of
the trial court’s order.
2. Summary Judgment
12 Robert argues that the trial court erred by granting Joseph and Monty’s motion for
summary judgment on his claims that Dorothy lacked testamentary capacity and was
under undue influence at the time she amended the Trust and other estate documents. We
will review each issue in turn.
When reviewing a trial court’s order granting summary judgment, we apply the
same standard as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930
(Ind. 2008). Summary judgment is appropriate only where the designated evidence
shows “that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its
resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact
is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed
facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761
(Ind. 2009) (internal citations omitted).
“[T]he party seeking summary judgment has the initial burden of proving the
absence of a genuine issue of material fact as to an outcome-determinative issue. Only
then must the non-movant come forward with contrary evidence demonstrating the
existence of genuine factual issues that should be resolved at trial.” Kroger Co. v.
Plonski, 930 N.E.2d 1, 9 (Ind. 2010) (citing Jarboe v. Landmark Cmty. Newspapers of
Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994), reh’g denied). Indeed, when the defendant is
the moving party, the defendant must show that the undisputed facts negate at least one
element of the plaintiff’s cause of action or that the defendant has a factually
13 unchallenged affirmative defense that bars the plaintiff’s claim. Dible v. City of
Lafayette, 713 N.E.2d 269, 272 (Ind. 1999).
Summary judgment “should not be used as an abbreviated trial, even where the
proof is difficult or where the court may believe that the non-moving party will not
succeed at trial.” Hudson v. Davis, 797 N.E.2d 277, 287 (Ind. Ct. App. 2003), reh’g
denied, trans. denied. See also Carrell v. Ellingwood, 423 N.E.2d 630, 636 (Ind. Ct.
App. 1981) (explaining that even if a trial court believes that a party moving for summary
judgment will prevail at trial or believes that the likelihood of the nonmoving party’s
recovery is improbable, “such are no bases for summary judgment”). Instead, in
determining whether summary judgment is appropriate, we construe all facts and
reasonable inferences in favor of the nonmoving party. Mangold ex rel. Mangold v. Ind.
Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). We must carefully review a
decision on summary judgment to ensure a party is not improperly denied his day in
court. Id. at 974.
A. Testamentary Capacity
Robert first argues that the trial court erred by granting summary judgment to
Joseph and Monty on his claim that Dorothy lacked testamentary capacity at the time she
amended the Trust.
“The capacity of a settlor that is required to . . . amend . . . a revocable trust is the
same as the capacity of a testator that is required to make a will.” Ind. Code § 30-4-2-
10(b). Every person is presumed to be of sound mind to execute a will. Gast v. Hall, 858
N.E.2d 154, 165 (Ind. Ct. App. 2006) (citing Hays v. Harmon, 809 N.E.2d 460, 464 (Ind.
14 Ct. App. 2004), trans. denied), reh’g denied, trans. denied. To rebut this presumption, a
party must show that the testator, at the time of executing his will, lacks the mental
capacity to know: “(1) the extent and value of [her] property; (2) those who are the
natural objects of [her] bounty; and (3) their deserts, with respect to their treatment of and
conduct towards [her]. Id. It is the testator’s mental capacity or soundness of mind at the
time she executes the document at issue that is controlling. Id. However, evidence of the
testator’s mental condition before the date of execution is admissible as it relates to the
testator’s mental state at the time she executed the document at issue. Id.
In moving for summary judgment on this issue, Joseph and Monty designated the
following evidence: Robert’s initial petition challenging the Trust; the Trust and its two
amendments; other documents (including the two powers of attorney executed in 2010
and the July 2010 will); and portions of Attorney Blaney’s deposition in which he
generally concluded that Dorothy was of sound mind but also stated that he was unaware
if Dorothy was taking any medications at the time she amended the Trust.
Robert contends that Attorney Blaney’s deposition is not enough to entitle Joseph
and Monty to summary judgment and that “there are ample questions of fact as to
Dorothy Rhoades[’s] testamentary capacity when she executed the amendments to her
estate plan documents on July 29, 2010.” (Robert’s Br. at 17). Specifically, he contends
that there is a genuine issue of material fact regarding Dorothy’s capacity given the side
effects of the medications she was taking at the time she made the amendments and given
the surrounding facts leading up to her amendments, including the cessation of her
dialysis.
15 We agree that summary judgment was inappropriate in this case as Robert’s
designated evidence establishes that there is a genuine issue of material fact in regard to
Dorothy’s testamentary capacity. In his designated evidence, Robert included various
affidavits regarding Dorothy’s capacity and medication use. Among those affidavits was
an affidavit from John, who stated that Dorothy was taking Tramadol, Hydrocodone,
Xanax, thyroid medication, and blood pressure medication and that he had seen Caretaker
Ray give Dorothy morphine three or four times.
Robert also included an affidavit from a pharmacist, who explained the side
effects of the medications that Dorothy was taking between July 12, 2010 and August 9,
2010. Attached to the pharmacist’s affidavit was a printout from Dorothy’s pharmacy
showing that between July 20 and 26, 2010, Dorothy filled prescriptions for
Hydrocodone, Furosemide, Prochlorperazine, and Exforge. The pharmacist stated that
“most of the medications” that Dorothy was taking “caused drowsiness, dizziness, light-
headedness and/or blurred vision.” (App. 309). The pharmacist also stated that the “side
effects taken in combination with each other would lead one to believe that [Dorothy]
was not in her right mind due to the amounts and variety of medications that she was on
from July 12, 2010 through August 9, 2010.” (App. 309). Finally, the pharmacist opined
that “it is more probable than not, within a reasonable degree of medical certainty that
[Dorothy] was not coherent enough to make rational decisions as to her estate planning
matters, due to the medications she was consuming.” (App. 310).
Additionally, Robert included an affidavit from Caretaker Lucas, who stated that
she had known Dorothy for eleven years before her death. She also stated that she helped
16 to care for Dorothy from March 18 to July 12, 2010, and that she was familiar with the
medications that Dorothy was taking. Caretaker Lucas also stated that she visited with
Dorothy two or three times per week from July 12 to July 31, 2010 and that “[d]uring
those visits, [she] noticed that [Dorothy] was under the affects [sic] of her medication
which resulted in her inability to fully comprehend what was fully happening to her.”
(App. 314).
The state of Dorothy’s mind at the time she amended the Trust and other estate
documents involves a fact-specific analysis that does not lend itself to summary
judgment. Construing the facts and reasonable inferences in favor of Robert as the
nonmoving party, we conclude that there is a genuine issue of material fact regarding
whether Dorothy was of sound mind at the time she executed the amendments at issue.
Accordingly, we conclude that the issue of testamentary capacity is a question of fact for
a jury to determine and that the trial court erred by granting summary judgment on this
issue. See, e.g., Gast, 858 N.E.2d at 165-66 (reversing trial court’s grant of summary
judgment on issue of testamentary capacity); Estate of Verdi ex rel. Verdi v. Toland, 733
N.E.2d 25, 28 (Ind. Ct. App. 2000) (reversing the trial court’s grant of summary
judgment where there was an issue of material fact regarding soundness of mind), reh’g
denied; Carrell, 423 N.E.2d at 635 (explaining that issues regarding a person’s state of
mind are more appropriately a question of fact for a trier of fact).
B. Undue Influence
17 Robert also argues that the trial court erred by granting summary judgment to
Joseph and Monty on his claim that Dorothy was under the undue influence of Joseph at
the time she amended the Trust.
Undue influence is “‘the exercise of sufficient control over the person, the validity
of whose act is brought into question, to destroy his free agency and constrain him to do
what he would not have done if such control had not been exercised.’” Gast, 858 N.E.2d
at 166 (quoting In re Estate of Wade, 768 N.E.2d 957, 962 (Ind. Ct. App. 2002), trans.
denied). Undue influence is an “intangible thing that only in the rarest instances is
susceptible of what may be termed direct or positive proof.” Gast, 858 N.E.2d at 166.
That difficulty is enhanced by the fact that one who seeks to use undue influence does so
in privacy. Id. Accordingly, “undue influence may be proven by circumstantial
evidence, and the only positive and direct proof required is of facts and circumstances
from which undue influence reasonably may be inferred.” Id. The following
circumstances tending to support an inference of undue influence may be properly
considered by our Court: (1) the character of the beneficiary; (2) any interest or motive
the beneficiary might have to unduly influence the testator; and (3) the facts and
surrounding circumstances that might have given the beneficiary an opportunity to
exercise such influence. Id. “Undue influence is essentially a question of fact that should
rarely be disposed of via summary judgment.” Id.
Under Indiana law, a confidential relationship sufficient to support an undue
influence claim may arise as either a matter of law (“confidential relationships as a matter
of law”) or under the particular facts of a case (“confidential relationships in fact”).
18 Carlson v. Warren, 878 N.E.2d 844, 851 & 851 n.3 (Ind. Ct. App. 2007). Among those
confidential relationships as a matter of law are the relationships between a parent and
child8 and between a principal and agent. Id.; see also Supervised Estate of Allender v.
Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005), reh’g denied, trans. denied. These
relationships raise “a presumption of trust and confidence as to the subordinate party on
the one side and a corresponding influence as to the dominant party on the other.”
Allender, 833 N.E.2d at 533. The law will impose a presumption that a transaction was
the result of undue influence where the plaintiff’s evidence shows that: (a) there was
such a relationship; and (b) the dominant party benefits from a questioned transaction.
Id.; see also Carlson, 878 N.E.2d at 851. The burden then shifts to the dominant party to
rebut the presumption by providing “‘clear and convincing evidence’ ” that the dominant
party “‘acted in good faith, did not take advantage of [the] position of trust, and that the
transaction was fair and equitable.’” Carlson, 878 N.E.2d at 851 (quoting In re
Guardianship of Knepper, 856 N.E.2d 150, 154 (Ind. Ct. App. 2006), clarified on reh’g,
trans. denied); see also Allender, 833 N.E.2d at 533 (explaining that the presumption of
undue influence may be rebutted if dominant party establishes “clear and unequivocal
proof that the questioned transaction was made at arm’s length and thus valid”).
As explained above, as the party moving for summary judgment, Joseph and
Monty had the burden of designating evidence showing that there were no genuine issues
8 In a parent-child relationship, the parent is generally the dominant party, but a child may be determined to be the dominant party by virtue of being a caretaker for the parent. See, e.g., See Allender, 833 N.E.2d at 533-34. However, “[t]he question of which party has attained the position of the dominant party, under the evidence, is a question for the trier of fact.” Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839-40 (Ind. Ct. App. 2009), trans. denied. 19 of material fact regarding whether Dorothy was under undue influence at the time she
amended the Trust and other documents in July 2010. See Kroger, 930 N.E.2d at 9;
Jarboe, 644 N.E.2d at 123. In an attempt to meet their burden to show the absence of a
material fact on this issue, Joseph and Monty merely relied on their argument regarding
testamentary capacity. In other words, they argued there was no undue influence because
Dorothy was of sound mind.
Because we have determined that there is an issue of material fact regarding
testamentary capacity, we conclude that summary judgment was also not appropriate on
the issue of undue influence. Here, Robert filed this action challenging the July 2010
amendment to the Trust and alleging that Joseph had unduly influenced Dorothy to
amend the Trust. The undisputed evidence shows that Joseph is a child of Dorothy and
that he benefitted from the amendment of the Trust. Additionally, Joseph was an
attorney-in-fact for Dorothy. Joseph and Monty have not met their initial burden on
summary judgment and have not shown that there is an absence of an issue of material
fact regarding undue influence. Indeed, the question remains as to whether Joseph was in
a dominant position in the parent-child relationship such that a presumption of undue
influence would be imposed. Accordingly, we reverse the trial court’s grant of summary
judgment and remand for further proceedings. See, e.g., Gast, 858 N.E.2d at 166-67
(explaining that “[u]ndue influence is essentially a question of fact that should rarely be
disposed of via summary judgment” and reversing trial court’s grant of summary
judgment on undue influence); Estate of Verdi, 733 N.E.2d at 29 (reversing the trial
20 court’s grant of summary judgment where there was an issue of material fact regarding
undue influence).
Reversed and remanded.
KIRSCH, J., and VAIDIK, J., concur.