Scribner v. Gibbs
2011 Ind. App. LEXIS 1308
| Ind. Ct. App. | 2011Background
- Gibbs Sr. died January 8, 2010; Gibbs Jr. acted as personal representative of the estate and executor of Gibbs Sr.'s will.
- Gibbs Jr. arranged a quick will that left the entire estate to himself, excluding the Granddaughters.
- The will was signed in the car after Gibbs Sr. reviewed it briefly; two witnesses, Hubbard and Montgomery, observed.
- A self-proving clause was attached and signed by Gibbs Sr., Montgomery, and Hubbard.
- The Granddaughters contested the will, arguing improper execution/publication and undue influence; the trial court granted Gibbs Jr. summary judgment, which the Granddaughters appealed.
- There was no evidence of Gibbs Sr.’s dementia; doctor notes from the December 29, 2009 appointment described Gibbs Sr. as pleasant and capable of discussing his issues, not mentally infirm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper execution/publication of the will | Scribner argues no publication occurred | Gibbs Jr. relies on self-proving clause to establish publication | Presumption of proper execution upheld due to self-proving clause |
| Undue influence | Granddaughters contend Gibbs Jr. controlled Gibbs Sr. | No confidential relationship in law or fact shown; no evidence of dominance | No evidence of confidential relationship or undue influence; summary judgment affirmed on this issue |
| Mistake or fraud | Will invalid due to mistake/fraud | Arguments not supported by cited authority; evidence not designated for summary judgment | waived/moot; trial court affirmed on remaining issues |
Key Cases Cited
- Callaway v. Callaway, 932 N.E.2d 215 (Ind.Ct.App.2010) (publication and execution of a will; self-proving clause recognized)
- In re Russell's Estate, 264 N.E.2d 269 (Ill.App.2d 1970) (attestation clause sufficient where execution forms are facially regular)
- Fitch v. Maesch, 690 N.E.2d 350 (Ind.Ct.App.1998) (considers attestation/self-proving clauses; resolution of inconsistencies at summary judgment not guaranteed)
- Munster v. Marcrum, 393 N.E.2d 256 (Ind.Ct.App.1979) (limitations of attending testimony in probate proceedings)
- Lucas v. Frazee, 471 N.E.2d 1166 (Ind.Ct.App.1984) (burden on plaintiff to show confidential relationship and unfair advantage)
- Carlson v. Warren, 878 N.E.2d 844 (Ind.Ct.App.2007) (confidential relationship in fact; burden shifting on undue influence claims)
- Baker v. Whittaker, 182 N.E.2d 442 (Ind.App.1962) (caution against undue interference with elderly testators)