Avery v. Avery, 953 N.E.2d 470

After Mary Louise Avery died, Trina Avery opened a supervised estate and was appointed personal representative.
On December 30, 2009, Rod and Marshall Avery filed a petition in the probate estate to remove Trina and to probate the 2008 will naming Rod as personal representative.
The probate court admitted the 2008 will to probate and scheduled a hearing on removal and replacement of the personal representative.
On February 1, 2010, Trina filed a separate will contest asserting undue influence, fraud, duress, and that a 2009 will superseded and revoked the 2008 will; notice was given to Rod and Marshall.
The summons advised an answer within 20 days or a default judgment; none defendants filed an answer; March 10, 2010 default motion was granted, leading to an appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is an answer required in a will contest?	Avery argues no explicit answer requirement under statute.	Avery argues Trial Rules require an answer in will contests.	Yes; an answer is required and default judgment proper.

State ex rel. Brosman v. Whitley Circuit Court, 245 Ind. 259 (1964) (pre-Trial Rules view that pleadings may be informal in wills contests)
Robinson v. Estate of Hardin, 587 N.E.2d 683 (Ind. 1992) (Trial Rules supersede statutory procedures unless specifically exempted)
State ex rel. Gaston v. Gibson Circuit Court, 462 N.E.2d 1049 (Ind. 1984) (Trial Rules control civil procedures over conflicting statutes)
Augustine v. First Fed. Sav. & Loan Ass'n of Gary, 384 N.E.2d 1018 (Ind. 1979) (acknowledges precedence of procedural rules over statutes)