IN THE
Court of Appeals of Indiana
In re: the Administration of the Trust of:
H. Louise Bosworth, Deceased. FILED
Mar 15 2024, 10:16 am
Vickie Jones, et al., CLERK
Indiana Supreme Court
Appellants-Petitioners Court of Appeals
and Tax Court
v.
Tony Bosworth,
Appellee-Respondent
March 15, 2024
Court of Appeals Case No.
23A-TR-807
Appeal from the Randolph Circuit Court
The Honorable Jay L. Toney, Judge
Trial Court Cause No.
68C01-2112-TR-164
Opinion by Judge May
Chief Judge Altice and Judge Foley concur.
May, Judge.
Court of Appeals of Indiana | Opinion 23A-TR-807 | March 15, 2024 Page 1 of 13
[1] Vickie Jones and Karen Loser (collectively, “Sisters”) appeal the trial court’s
order docketing the copy of the H. Lousie Bosworth Trust Agreement tendered
by Tony Bosworth (“Tony”). The Sisters raise three issues on appeal, which we
consolidate, revise, and restate as: Whether Tony properly challenged Sisters’
verified petition to docket trust by filing a second verified petition to docket
trust in the cause of action opened by Sisters. We affirm in part, reverse in part,
and remand.
Facts and Procedural History
[2] Jones, Loser, and Tony are the three children of H. Louise Bosworth
(“Louise”) and Neal L. Bosworth (“Neal”). Louise died on October 19, 2019.
Neal passed away on April 4, 2021.
[3] On December 22, 2021, Sisters filed a petition to docket Louise’s trust in the
Randolph County Circuit Court. They attached to their petition a collection of
documents (hereinafter collectively referred to as “Two-Amendment
Instrument”) that included the original trust instrument that Louise created on
February 5, 2003, a first trust amendment that Louise had signed on December
20, 2006, and a second trust amendment that Louise signed on December 22,
2011. The trial court granted Sisters’ petition on December 28, 2021, and
ordered the Two-Amendment Instrument be docketed and administered. The
trial court’s order stated:
WHEREFORE IT IS NOW HEREBY ORDERED,
ADJUDGED AND DECREED:
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1. This Court assumes jurisdiction and venue over the
administration of the Original Trust Instrument, the First
Amendment, and the Second Amendment.
2. The Original Trust Instrument, the First Amendment, and the
Second Amendment are hereby docketed in this proceeding,
pursuant to I.C. 30-4-6-7.
3. Said written instruments shall be removed from the Court’s
file upon conclusion of this matter.
4. Administration of the Original Trust Instrument, the First
Amendment, and the Second Amendment shall be subject to the
supervision of this Court, pending resolution of all issues related
thereto.
5. Following are the interested persons entitled to Notice of all
proceedings herein:
Vickie L. Jones
Beneficiary of the Original Trust Instrument, the First Trust
Amendment and the Second Trust Amendment
Karen J. Loser
Beneficiary of the Original Trust Instrument, the First Trust
Amendment and the Second Trust Amendment
Tony W. Bosworth
Beneficiary of the Original Trust Instrument, the First Trust
Amendment and the Second Trust Amendment
(Appellant’s App. Vol. II at 65-66) (emphasis in original). On January 6, 2022,
Sisters’ counsel sent Tony a certificate of trust. The cover letter included with
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the certificate of trust stated: “You must commence any judicial proceeding to
contest the validity of the Trust within (90) days after your receipt of this Notice
and the enclosed Certificate of Trust.” (Id. at 106.)
[4] On January 20, 2022, in the cause of action commenced by Sisters, Tony filed a
verified petition to docket trust. Tony attached to his verified petition a
collection of documents (hereinafter collectively referred to as “Three-
Amendment Instrument”) that included the original trust instrument Louise
created on February 5, 2003, the two amendments to the original trust
instrument that Sisters had submitted, and a third amendment to the original
trust instrument that Louise signed on July 15, 2016. Tony asserted in his
petition to docket trust:
7. On December 22, 2021, Vickie Jones and Karen Loser
submitted a Petition to Docket Trust.
8. On December 28, 2021, the Court entered an Order Docketing
Trust, however such Order only referenced and gave the Court
powers of supervision and administration over the Trust and two
of the three amendments to the Trust.
9. Accordingly, Tony Bosworth submits that the granting of
relief in the form of the docketing of the complete Trust
Agreement including all three amendments thereto is
appropriate.
(Id. at 68.) The trial court set a hearing for March 15, 2022, on Tony’s petition,
but the hearing was reset and vacated multiple times.
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[5] On December 30, 2022, the trial court entered an order directing the parties to
submit briefs regarding Tony’s verified petition and set a hearing on the petition
for March 9, 2023. Sisters argued in their brief in opposition to Tony’s verified
petition that Tony had waived his right to contest the validity of the copy of
Louise’s trust that Sisters filed on December 22, 2021, because his purported
action contesting the validity of the trust was procedurally improper and
untimely. In Tony’s brief, he argued that the copy of the trust instrument he
filed was “self-proving” and that if Sisters wished to assert Louise lacked the
capacity to enter the third amendment to the instrument, they bore the burden
of proving Louise lacked such capacity. (Appellee’s App. Vol. II at 125.)
[6] On March 9, 2023, the trial court began the hearing 1 by stating:
COURT: We are here this morning on two Trust matters. The
Matter of the Administration of the Trusts of Neal Bosworth,
2112-TR-163 and Trust of H. Louise Bosworth, 2112-TR-164. . .
. These causes are scheduled today for argument essentially and
the Court will take testimony also with regard to the issue of
whether Mr. Bosworth acted appropriately and in a timely
manner in the filings that he made in each of these cases. The
Court will then take that matter under advisement pursuant to
conversations with both counsel in chambers this morning, how
the case would proceed after that point would depend upon my
determination of that issue. For example, if the Court
determined that Mr. Bosworth was not timely, and his filing was
not appropriate then the Court would proceed with the Trust [sic]
1
For this hearing, the trial court consolidated the instant lawsuit between Sisters and Tony regarding
Louise’s trust and a second lawsuit between Sisters and Tony related to Neal’s trust. See In re: the
Administration of the Trust of: Neal L. Bosworth, Deceased. Vickie Jones, et al. v. Tony Bosworth, 23A-TR-00813.
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as they are already filed and if the Court determined Mr.
Bosworth did act timely and appropriately in what he filed then
we would proceed with evidentiary hearings as to which of the
amendments, well there actually may be other filings that will be
made. The Court will make that determination first and then the
parties can make their decisions as to how to proceed at that
point. Counsel does that accurately reflect our conversations this
morning.
[Sisters:] Yes, Your Honor.
[Tony:] I believe it does Judge.
(Appellants’ Supp. App. Vol. II at 3.) Tony testified at the hearing, but Sisters
did not testify or present any evidence.
[7] On March 17, 2023, the trial court issued an order granting Tony’s petition.
The order provided, in relevant part:
A. Tony Bosworth’s Petition should be, and hereby is, granted.
B. The H. Louise Bosworth Trust Agreement dated as of
February 5, 2003 together with each of the three amendments
thereto . . . is hereby docketed in this proceeding pursuant to Ind.
Code § 30-4-6-7.
*****
D. The H. Louise Bosworth Trust Agreement dated as of
February 5, 2003 together with each of the three amendments
thereto . . . shall be administered under the supervision of this
Court.
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E. This Order shall supersede and take precedence over this
Court’s Order Docketing Trust entered on December 28, 2021.
(Appellant’s App. Vol. II at 8-9.) On April 11, 2023, Sisters filed a motion for
the trial court to certify for interlocutory appeal its order docketing the Three-
Amendment Instrument. The trial court certified the order for interlocutory
appeal on April 17, 2023. We accepted interlocutory jurisdiction on June 26,
2023.
Discussion and Decision
[8] Sisters assert Tony failed to comply with the statutory procedure for contesting
a trust, and therefore, the trial court lacked the requisite authority to docket the
Three-Amendment Instrument. Sisters ask us to vacate the trial court’s order
docketing the Three-Amendment Instrument and reinstate the trial court’s
December 28, 2021, order docketing the Two-Amendment Instrument. We
review the trial court’s order de novo because it turns on a question of statutory
interpretation. Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). “[O]ur
goal in statutory interpretation is to determine, give effect to, and implement the
intent of the legislature as expressed in the plain language of its statutes.”
Metro. Dev. Corp. v. Powell, 162 N.E.3d 936, 937 (Ind. Ct. App. 2020). “The
rules of statutory interpretation mandate that we assign words their plain and
ordinary meaning unless the statute provides definitions otherwise.”
Montgomery v. State, 878 N.E.2d 262, 266 (Ind. Ct. App. 2007). We pay
attention both to what the statute says and to what it does not say. ESPN, Inc. v.
Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016). “[W]e may
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not add new words to a statute which are not the expressed intent of the
legislature.” Ramey v. Ping, 190 N.E.3d 392, 403 (Ind. Ct. App. 2022), trans.
denied.
[9] Indiana Code section 30-4-6-14 provides a time limit within which an
individual must contest the validity of a trust. The statute states, in relevant
part:
(a) A person must commence a judicial proceeding to contest the
validity of a trust that is irrevocable or revocable at the settlor’s
death, or revocable at the time the notice under this section is
given, within the earlier of the following:
(1) Ninety (90) days after the person receives from the trustee, the
settlor, or the agent of the trustee or settlor, a copy of a trust
certification required by IC 30-4-4-5 and a notice that:
(A) informs the person of the trust’s existence;
(B) states the trustee’s name and address;
(C) states:
(i) the person’s interest in the trust, as described in
the trust document; or
(ii) that the person has no interest in the trust; and
(D) states the time allowed for commencing the
proceeding.
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(2) Three (3) years after the settlor’s death.
Ind. Code § 30-4-6-14(a). Sisters’ counsel sent a copy of the trust certification to
Tony on January 6, 2022, and Tony filed the second petition to docket trust on
January 20, 2022. Thus, Tony filed within the 90 days provided by Indiana
Code section 30-4-6-14(a)(1).
[10] Nevertheless, Sisters contend Tony’s filing of a second petition does not satisfy
the requirement in Indiana Code section 30-4-6-14(a) that the challenging party
“commence a judicial proceeding.” (emphasis added). They argue “three
documents are required to commence a suit: a complaint, a summons, and a
filing fee.” (Appellant’s Br. at 8.) Sisters analogize the instant case to Blackman
v. Gholson, 46 N.E.3d 975 (Ind. Ct. App. 2015), reh’g denied. In Blackman, two
of the decedent’s three children filed a petition to open the decedent’s estate and
probate her will. Id. at 977. The third child then filed a “Verified Contest of
Will” in the same court and under the same cause number as the original
probate action. Id. The trial court dismissed the will contest action, and we
affirmed the trial court. Id. We reasoned that while the statute outlining the
procedure for initiating a will contest was vague, “caselaw has emphasized that
a will contest action is separate and distinct from the probate of a will, and that
it is governed by the Indiana Trial Rules regarding commencement of a civil
action; it is not treated merely as a pleading within the probate action.” Id. at
980.
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[11] However, the statutes governing will contests specifically require a person
wishing to contest the validity of a will to file “a separate cause of action” in the
court with jurisdiction over probate of the will. Ind. Code § 29-1-7-16.5 & Ind.
Code § 29-1-7-17 (emphasis added). There is not a “separate cause of action”
requirement in the statute governing trust contests. While Indiana Code section
30-4-6-14(a) states the challenging party must “commence a judicial
proceeding[,]” Indiana Code section 30-4-6-5 indicates a proceeding under the
trust code “may be initiated on either a petition or complaint” and upon
adequate notice. Here, Tony filed a petition, and there is no assertion that
Sisters did not receive adequate notice of his filing.
[12] Filing the alternate version of the same trust in the same cause of action also
serves the interest of judicial economy because the trial court charged with
supervising the administration of a trust is the same court deciding contests
related to the trust’s validity. See Kobold v. Kobold, 121 N.E.3d 564, 575 (Ind.
Ct. App. 2019) (allowing ejectment case to proceed within dissolution action
served the interest of judicial economy), trans. denied. In Schrage v. Audrey R.
Seberger Living Trust, we held that, while the trial court had the discretion to
order that a copy of a trust be docketed in a case brought by an individual
challenging the trust’s validity, the claimant challenging the trust’s validity was
not required to petition for the trust be docketed before initiating her action. 52
N.E.3d 54, 65 (Ind. Ct. App. 2016). Thus, it follows that if a trial court may
order that a trust be docketed in a trust contest action, a person should be
allowed to contest the validity of the trust in the trust docketing proceeding.
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We therefore hold Tony was not required to initiate a separate proceeding to
contest the validity of the Two-Amendment Instrument. 2
[13] However, to the extent the trial court’s March 17, 2023, order proports to
recognize the Three-Amendment Instrument over the Two-Amendment
Instrument, the order goes beyond the scope of the issues to be addressed at the
March 9, 2023, hearing. At the hearing, the trial court indicated that it would
hear argument and take evidence “with regard to the issue of whether [Tony]
acted appropriately and in a timely manner in the filings that he made[.]”
(Appellant’s Supp. App. Vol. II at 3.) The trial court further indicated that if it
“determined [Tony] did act timely and appropriately in what he filed then we
would proceed with evidentiary hearing as to which of the amendments, well
there actually may be other filings that will be made.” (Id.) As Sisters point out
in their reply brief, “[b]efore the trial court could decide if the Third
Amendment was valid, it needed to decide whether Tony satisfied the
procedural requirements to raise the issue at all.” (Appellants’ Reply Brief at
18.) Sisters assert the trial court’s March 17, 2023, order “improperly conflates
2
While we reach our holding regarding Tony’s January 2022 petition based on the statutes and caselaw that
existed at that time, we note the General Assembly shortly thereafter modified the Trust Code to explicitly
provide that competing versions of a trust instrument could be filed in the same proceeding. See Ind. Code §
30-4-6-7(a) (effective July 1, 2022) (“If there is a dispute about whether the trust has been amended or
restated or about which version of a trust instrument is a valid version, two (2) or more parties may file copies
of different trust instruments or amendments so that the court is aware of their contents.”) & Ind. Code § 30-
4-6-7(c) (effective July 1, 2022) (“The filing of a copy of a trust instrument under this section does not
preclude any interested person from asserting claims or defenses regarding the validity, interpretation, or
administration of the trust or from cross-petitioning for relief under this title.”).
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the processes for docketing and contesting a trust.” (Appellant’s Br. at 9.) We
agree.
[14] Sisters assert that they believe the Three-Amendment Instrument “to be invalid
due to a lack of capacity and/or the product of undue influence by Tony[.]”
(Appellant’s Br. at 16.) The party asserting a claim of undue influence or lack
of testamentary capacity bears the burden of proving its claim. Moriarty v.
Moriarty, 150 N.E.3d 616, 629 (Ind. Ct. App. 2020), trans. denied. However,
here, Sisters have not had the opportunity to present evidence to support their
theory that the Three-Amendment Instrument is the product of undue influence
or a lack of testamentary capacity because the March 9, 2023, hearing was
limited to whether Tony’s challenge to the validity of the Two-Amendment
Instrument was procedurally proper and timely. Therefore, we vacate the
portion of the trial court’s order that purports to credit the Three-Amendment
Instrument over the Two-Amendment Instrument and remand with instructions
for the trial court to decide which version of the trust instrument is valid. See,
e.g., In re Rhoades, 993 N.E.2d 291, 302 (Ind. Ct. App. 2013) (holding genuine
issue of material fact existed regarding whether son unduly influenced mother
into amending her trust to specifically exclude second son and remanding for
further proceedings).
Conclusion
[15] Tony was not required to initiate a separate cause of action to contest the
validity of the Two-Amendment Instrument. His petition to docket the Three-
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Amendment Instrument in the same cause of action where Sisters filed their
petition to docket the Two-Amendment Instrument sufficiently put Sisters on
notice regarding his challenge. However, because there are competing claims
regarding the validity of the Three-Amendment Instrument, we remand the
matter back to the trial court to resolve the claims. We affirm the trial court in
part, reverse in part, and remand.
[16] Affirmed in part, reversed in part, and remanded.
Altice, C.J., and Foley, J., concur.
ATTORNEYS FOR APPELLANTS
Frank D. Otte
Jennifer F. Perry
Olivia A. Hess
Clark, Quinn, Moses, Scott & Grahn, LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Lisa M. Dillman
Applegate & Dillman Elder Law
Indianapolis, Indiana
Ben T. Caughey
Mercho Caughey
Indianapolis, Indiana
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