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  • Writer's pictureTroyer & Good, PC

Case Study: Probate Code Does Not Apply to Pre-Mortem Agreements

Updated: Dec 17, 2018

In 2008, Gary Kent executed a Last Will and Testament that left the majority of his estate to his daughter, Cindy Kerr, and one of his sons, David Kent. On December 16, 2015, at the request of their terminally ill father, Cindy and David signed an agreement to formalize how their inheritance would be divided. Gary signed the Agreement to indicate that it conformed to his wishes. David attempted to rescind the agreement while the father was still living.

After his father’s death, David filed the 2008 Will with the Court. Cindy challenged the probate of the Will requesting the Agreement be enforced either as a codicil or a settlement agreement pursuant to Indiana Code § 29-1-9 (the Adjudicated Compromise Chapter). A trial court found the Agreement was neither a Codicil nor a settlement agreement pursuant to the Compromise Chapter. The trial court found that since the Agreement was executed before Gary’s death, it did not fall within the scope of the Compromise Chapter. It ordered that the Will be admitted to probate without reference to the Agreement. Cindy appealed.

The court of appeals reversed and remanded, concluding that the Compromise Chapter did not clearly prohibit pre-mortem family settlement agreements. It thus instructed the probate Court to enforce the Agreement. However, the Indiana Supreme Court vacated the court of appeals opinion and affirmed the trial court’s order. The Supreme Court held that the Compromise Chapter was intended to only apply to agreements entered into after the person’s death. Therefore, it ruled that Cindy could not use the Compromise Chapter to enforce the pre-mortem agreement with David. The Court declined to address the validity of David’s rescission of the Agreement or the enforceability of the Agreement according to general contract law.


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