In the Matter of the Supervised Estate of Mildred Borgwald v. Old National Bank and Raelynn Pound
12 N.E.3d 252
| Ind. Ct. App. | 2014Background
- 95-year-old Mildred Borgwald died August 29, 2008; she previously executed a will and a general durable power of attorney naming Lana as attorney-in-fact.
- Dr. Lance Pickrell declared Mildred unable to manage her affairs in 2001, activating the power of attorney.
- Raelynn cared for Mildred at home from 2007 to 2008 and Mildred’s funds for care were paid from an equity line of credit.
- Mildred obtained an equity line of credit against her home in October 2007; initial disbursement funded Raelynn’s services.
- Estate challenged Maureen’s capacity and undue influence claims; Old National Bank (ONB) sought to foreclose the mortgage and line of credit as a valid lien.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by excluding Dr. Lalouche’s testimony | Estate argues Dr. Lalouche is qualified and helpful | ONB/Raelynn contend he is non-treating and not competent | No; court did not abuse discretion in excluding |
| Whether the Estate was denied an offer of proof regarding Dr. Lalouche | Estate should be allowed to present live testimony or offer of proof | Estate already had opportunity via report and discovery rulings | Estate not denied offer of proof; ruling preserved on record |
| Whether redacted medical records were improperly admitted | Redactions should preserve relevant medical observations | Records lacked proper 702 foundation and nurse opinions | Trial court did not abuse discretion; redactions upheld |
| Whether the mortgage is invalid due to notary reading requirements under IC 33-42-2-2(4) | Notary failed to read to Mildred; may invalidate mortgage | Will or mortgage not requiring notarization to be valid; only notary signature invalid | Mortgage not invalidated; notary defect alone does not void mortgage |
Key Cases Cited
- Bennett v. Richmond, 960 N.E.2d 782 (Ind. 2012) (psychologist qualified where personally evaluating plaintiff; helpful where facts support)
- Flores v. Gutierrez, 951 N.E.2d 632 (Ind. Ct. App. 2011) (admission of medical records requires proper foundation for experts)
- Wilkins v. Swafford, 811 N.E.2d 374 (Ind. Ct. App. 2004) (exclusion of doctor’s report when witness not qualified)
- Outlaw v. Danks, 832 N.E.2d 1108 (Ind. Ct. App. 2005) (notarization issues in wills; will validity unaffected by defective notarization)
- Brooks v. Friedman, 769 N.E.2d 696 (Ind. Ct. App. 2002) (medical records need proper 702 foundation; expert required)