Troxel v. Troxel

ATTORNEY FOR APPELLANTS

Paul T. Cholis
South Bend, Indiana

ATTORNEYS FOR APPELLEE

Randy J. Spitaels
Loren R. Sloat
Nappanee, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

KEVIN R. TROXEL and )
RICK L. TROXEL, )
)
Appellants (Petitioners Below), ) Indiana Supreme Court
) Cause No. 71S04-0008-CV-480
v. )
)
JOANNE K. TROXEL, ) Indiana Court of Appeals
Personal Representative of the Estate ) Cause No. 71A04-9904-CV-162
of Jack L. Troxel, Deceased, )
)
Appellee (Respondent Below). )
__________________________________________________________________

APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
Cause No. 71J01-9707-ES-343
__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

November 3, 2000

BOEHM, Justice.
We hold that where a probate court erroneously admits a will to
probate after the expiration of the statute of limitations, the court’s
subsequent orders are voidable and subject to attack via a timely will
contest, but are not void. Accordingly, any interested party with notice
of the belated effort to probate the will must object within the five-month
period for a will contest.
Factual and Procedural Background
Jack Troxel and his second wife, Joanne, lived in a home on a twenty-
four acre parcel of property in rural St. Joseph County. After their
marriage, they purchased several adjoining parcels that were titled in both
of their names as joint tenants with right of survivorship. In 1981, Jack
executed a will leaving his entire estate to Joanne and naming her as the
personal representative of his estate. Jack died in 1992. His heirs-at-
law included his spouse Joanne and two sons from a previous marriage, Kevin
and Rick Troxel (hereinafter “the Troxels”).
The property on which Joanne resided was in fact held of record by
Jack alone, but Joanne assumed that Jack held no assets solely in his name
and therefore took no steps to probate his will or open an estate. The
three-year statutory period for probating Jack’s will after his death
expired in 1995. It seems obvious that the Troxels also assumed the
property was Joanne’s after Jack’s death. There is no indication in the
record that the Troxels took any action to assert their alleged ownership
of the twenty-four acre parcel. They did not seek to open Jack’s estate as
intestate, which, if successful, would have made Kevin and Rick Troxel the
undisputed fee simple owners of the property subject to Joanne’s life
estate in one-third of the parcel. Ind. Code § 29-1-2-1(c) (1998). Nor
did they pay property taxes on the parcel, or take any action to remove
Joanne from the property, or collect rent from Joanne.
Joanne continued to live in the marital residence until December 1996,
when her home was destroyed by fire. Joanne filed a claim on her insurance
policy and sought a building permit to replace the residence. In the
course of that process she learned for the first time that the twenty-four
acre parcel was titled in Jack’s name only.
On July 22, 1997, in order to have the title to the parcel transferred
to her, Joanne filed her Petition for Probate of Will and Issuance of
Letters. One week later, the St. Joseph Probate Court admitted Jack’s will
to probate. Joanne’s petition acknowledged Indiana Code section 29-1-7-
15.1(d), which states that a will shall not be probated unless the process
is initiated within three years of the decedent’s death. Despite the
statute, the probate court admitted the will to probate and subsequently
followed standard procedure, including publishing notices of
administration.
A few weeks after the will was admitted to probate, on or about August
14, 1997, Kevin telephoned one of the attorneys representing the estate and
asked about the administration of Jack’s estate. He was sent a copy of the
will on that day. Ten months later, on June 19, 1998, the probate court
closed the estate and issued an Order on Final Account and Decree of Final
Distribution and Discharge of Personal Representative. Pursuant to the
terms of the will, all assets in the estate were transferred to Joanne. On
August 7, 1998, the Troxels petitioned the probate court to reopen the
estate and revoke the probate of the will on the ground that it was
erroneously admitted to probate more than three years after Jack’s death.
Joanne responded with a motion to dismiss alleging that the petition failed
to state a claim upon which relief could be granted under Indiana Trial
Rule 12(B)(6).
The probate court issued a Memorandum of Law finding that, although it
did not have the statutory authority to admit Jack’s will to probate more
than three years after his death, its decision was not void, but merely
voidable. The probate court ruled that the probate of Jack’s will could
have been defeated by a timely will contest, but that the Troxels’ petition
to reopen the estate, filed more than five months after the will was
admitted to probate, was an untimely will contest barred by Indiana Code
section 29-1-7-17. Accordingly, the court granted Joanne’s motion to
dismiss.
After a motion to correct error was denied, the Troxels appealed. The
Court of Appeals reversed the order dismissing the Troxels’ petition,
holding that “the probate order was barred as a matter of law when it was
entered, and the petition to revoke that order should have been granted.”
In re Estate of Troxel, 720 N.E.2d 731, 736 (Ind. Ct. App. 1999).
The probate court’s decision to disallow the Troxels’ petition to
reopen the estate was based on Joanne’s motion to dismiss under Indiana
Trial Rule 12(B)(6). However, Joanne submitted two affidavits to the
probate court in support of her motion to dismiss. By the terms of Rule
12(B)(6), where affidavits are “presented to” the trial court in support of
a motion to dismiss for failure to state a claim, the trial court is to
treat the motion as a motion under Rule 56 for summary judgment. In this
case, no evidence was formally designated in the trial court because the
motion was filed as a Rule 12 motion to dismiss, not as a Rule 56 motion
for summary judgment. If a Rule 12 motion is accompanied by affidavits or
other appropriate factual matters, the matters “presented” are treated as
designated by the party. Ind. Trial Rule 12(C). The Troxels introduced no
evidence to contest Joanne’s assertions of fact. Shortly after Joanne’s
motion was filed, the Troxels acknowledged that her affidavits raised
evidentiary issues and expressed a desire to respond. Although the trial
court did not rule until three months after Joanne’s motion, the Troxels
never filed affidavits or any other evidence disputing Joanne’s factual
assertions. Therefore, the uncontroverted evidence before the trial court
consisted of Joanne’s two affidavits.
Standard of Review
On appeal, the standard of review for a summary judgment motion is the
same as that used in the trial court: summary judgment is appropriate only
where the evidence shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law. Ind.
Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.
1998). All facts and reasonable inferences drawn from those facts are
construed in favor of the non-moving party. Shell Oil, 705 N.E.2d at 983-
84. The review of a summary judgment motion is limited to those materials
designated to the trial court. Ind. Trial Rule 56(H); Rosi v. Business
Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993).
I. Admission of Will to Probate
The Troxels make two interrelated arguments supporting their
contention that the trial court erred when it denied their petition to
reopen Jack’s estate and revoke the order of probate. Jack’s will was
offered into probate more than three years after his death, in violation of
Indiana Code Section 29-1-7-15.1(d). For that reason, the Troxels first
argue that the probate court’s orders to admit the will to probate and
close the estate were void ab initio. The Court of Appeals agreed with
this reasoning. Troxel, 720 N.E.2d at 735.
We agree with the Court of Appeals that the language of Indiana Code
section 29-1-7-15.1(d) clearly and unambiguously bars the admission of
wills to probate more than three years after death. However, we do not
agree that where a probate court admits a will to probate in violation of
the statute, the order is void ab initio. Some form of the statute of
limitations for the probate of wills has been a part of Indiana state and
territorial laws since 1814. 1A Henry’s Probate Law & Practice (1999).
However, this is the first case in which the Indiana appellate courts have
been confronted with the question of the proper remedy when a court
erroneously admits a will to probate after the statutory time limit.
The Troxels rely on a 1968 opinion from the Court of Appeals to
strengthen their contention that the probate court’s order admitting Jack’s
will to probate was void ab initio. In re Estate of Cameron involved a
holographic, unsigned, and unwitnessed codicil that the trial court had
admitted to probate even though it did not meet the statutory requirements
of a testamentary document. 142 Ind. App. 645, 236 N.E.2d 626 (1968). An
opponent of the codicil filed objections to a nunc pro tunc order
purporting to admit the codicil as of a date twenty months earlier.[1] The
Court of Appeals excused the delay, following a California ruling that if
an order admitting a will to probate is void on its face, it may be
collaterally attacked at any time. The defect in Cameron was not in the
jurisdiction of the court but in the nature of the document represented to
be a codicil. On its face, the “codicil” did not constitute a testamentary
document and therefore was a “nullity” or “void” as a purported disposition
of the decedent’s assets. Cameron, 142 Ind. App. at 652, 236 N.E.2d at
628.
Assuming without deciding that Cameron was correctly decided, it is
not controlling here. The Troxels’ argument assumes that on September 26,
1995, three years after Jack’s death, his will became patently defective
and therefore the order admitting it to probate was void. We do not agree
that the expiration of a statute of limitations creates a patent defect in
an otherwise valid will. Statutory requirements regarding the form and
content of wills and related instruments are designed to ensure that
documents admitted to probate are valid and accurately represent the wishes
of the decedent. Unlike the unsigned codicil in Cameron, Jack’s will has
no defect that casts doubt upon its testamentary validity and there is no
dispute that the will represented Jack’s wishes regarding the distribution
of his property. Rather, the defect the Troxels assert is in the nature of
a statute of limitations bar to probating the will. Statutes of
limitations are affirmative defenses. Ind. Trial Rule 8(C). As such, they
are waivable. Id. As heirs-at-law, the Troxels were clearly interested
parties entitled to bring a will contest. They had a valid defense to the
probate of Jack’s will, but were under a time limitation of their own.
Indiana Code section 19-1-7-17 requires objections to be filed within five
months after a will is admitted to probate. This was not done and had the
effect of waiving the statute of limitations. The purpose of this
limitation, like the three-year period for probating a will, is to give
finality to the decedent’s affairs. Even if the initial probate was
untimely, the matter can be put to rest only if there is an end to the time
for objections to the untimely probate.
Second, the Troxels argue that an Indiana court has jurisdiction to
admit to probate only those wills that comply with all relevant statutory
requirements. By phrasing the claim in jurisdictional terms, the Troxels
contend that the court’s subsequent orders were void ab initio.
Jurisdiction is comprised of three elements: (1) jurisdiction of the
subject matter; (2) jurisdiction of the person; and (3) jurisdiction of
the particular case. Browning v. Walters, 620 N.E.2d 28, 31 (Ind. Ct. App.
1993). The question of subject matter jurisdiction entails a determination
of whether a court has jurisdiction over the general class of actions to
which a particular case belongs. DuShane v. DuShane, 486 N.E.2d 1106, 1107
(Ind. Ct. App. 1985). When a court lacks jurisdiction of the subject
matter, its actions are void ab initio and have no effect whatsoever. Such
judgments are incapable of confirmation or ratification. Trook v.
Lafayette Bank & Trust Co., 581 N.E.2d 941, 944 (Ind. Ct. App. 1991),
trans. denied. Lack of personal jurisdiction is also fatal and, in its
absence, an order can be attacked at any time. Stidham v. Whelchel, 698
N.E.2d 1152, 1154-56 (Ind. 1998).
The Troxels acknowledge that the St. Joseph Probate Court has subject
matter jurisdiction over probate. There is no challenge to jurisdiction
over the person of any of the parties. However, because probate law in
Indiana is purely statutory, the Troxels contend that orders issued by a
probate court in the absence of jurisdiction over a particular case are
void ab initio. This argument leads to two questions: (1) did the
expiration of the statute of limitations end the probate court’s
jurisdiction over the probate of Jack’s will, and (2) if so, did that
render the court’s subsequent orders void or voidable?
The Troxels rely on Cameron and Overpeck v. Dowd, 173 Ind. App. 610,
364 N.E.2d 1043 (1977), for the proposition that the probate court lacked
jurisdiction over Jack’s will. We think neither case supports their
argument. In Cameron, the Court of Appeals did not base its holding on the
probate court’s lack of jurisdiction. Rather, it found that the “codicil”
was a non-testamentary document and therefore a void attempt to amend the
will. Cameron, 142 Ind. App. at 645, 236 N.E.2d at 626.
Overpeck is a complicated case in which a series of estates had to be
opened and settled before the owners of a particular parcel of land could
be ascertained. As the probate court worked through a web of potential
beneficiaries, it granted letters of administration for the estates of
three sisters. Evidence later proved that none of the sisters had ever
been residents of Indiana, let alone the county in which probate was
opened. Nor did any of the sisters own any assets in Indiana that would
provide a basis for an ancillary administration. See Ind. Code §§ 29-2-1-1
to 12 (1998). In simple terms, title to the parcel of land in question had
never vested in any of the sisters, and they had no assets in Indiana. The
Court of Appeals held that an Indiana probate court lacks jurisdiction to
commence estate proceedings where the decedent is neither a domicile of
Indiana nor owns assets in Indiana. As a result, the orders regarding the
three estates were void. The Court of Appeals did not specify whether the
probate court lacked subject matter jurisdiction, personal jurisdiction, or
jurisdiction over the particular case. However, it is clear that the
probate court had neither personal jurisdiction over the three sisters nor
in rem jurisdiction over their estates. Therefore, neither Cameron nor
Overpeck supports the proposition that the probate court’s order admitting
Jack’s will was void for lack of jurisdiction.
Indiana appellate courts have consistently held that a judgment
rendered by a court without jurisdiction to hear that particular case is
not void, but merely voidable. If not attacked in a timely manner, the
jurisdictional defect is waived. Trook, 581 N.E.2d at 944; DuShane, 486
N.E.2d at 1107. The Troxels argue that this general principle should not
be applied to this case because probate law is purely statutory. This does
not seem to be a critical difference. But in any event, Indiana appellate
courts have applied this principle to claims that arise purely from
statute. Estate of Goodwin v. Goodwin, 721 N.E.2d 886, 890 (Ind. Ct. App.
1999) (divorce court’s nunc pro tunc dissolution order nine years after
divorce was finalized was found to be voidable); Chapman v. Skinner, 466
N.E.2d 777, 779 (Ind. Ct. App. 1984) (court that had issued divorce
judgment had continuing jurisdiction over child custody decree; therefore
different circuit court had no jurisdiction to entertain grandparents'
petition for visitation rights.) We see no reason to depart from this
precedent and decline to carve out an exception to this rule for probate
law.
We hold that the orders admitting Jack’s will to probate and closing
the estate were voidable because they violated Indiana Code section 29-1-7-
15.1(d). The proper remedy to correct the probate court’s order was the
timely filing of a will contest. Whether the Troxels availed themselves of
this remedy is discussed below.
II. Will Contest
Under the Indiana Code section 29-1-7-17:
Any interested person may contest the validity of any will in the
court having jurisdiction over the probate of the will within five (5)
months after the date of the order admitting the will to probate by
filing in the court the person’s allegations in writing verified by
affidavit, setting forth:
(1) the unsoundness of mind of the testator;
(2) the undue execution of the will;
(3) that the will was executed under duress or was obtained by fraud;
or
(4) any other valid objection to the will’s validity or the probate of
the will.

The Troxels argue that their petition to reopen the estate of Jack
Troxel, filed more than twelve months after the will was admitted to
probate, was erroneously treated as a will contest by the probate court.
Essentially, they make two alternative arguments. First, relying once more
on Cameron, they argue that Jack’s will had a patent defect and was
therefore subject to collateral attack at any time. This argument relies
on the idea that the probate court’s orders were void ab initio. We have
already rejected that contention.
Second, the Troxels contend that their petition was not a will contest
governed by section 17. Their petition was not a will contest, argue the
Troxels, because it was an attempt to force the trial court to recognize a
lack of jurisdiction over the will under Indiana Code section 19-1-7-
15.1(d). We think this a distinction without a difference.
The language of the statute is clear and unambiguous: will contests
may attack either the validity of a will or the admission of a will to
probate. Certainly the Troxels’ objection to the admission of a will to
probate in violation of the statute of limitations falls under the fourth
provision of the statute as an attempt to assert a “valid objection” to the
probate of the will.
The Troxels assert that, notwithstanding the language of the statute,
Indiana appellate courts have judicially limited a will contest action to
an attack upon the validity of a will on the grounds of (1) lack of
testamentary capacity or (2) undue execution. Jarrett v. Ellis, 193 Ind.
687, 687, 141 N.E. 627, 628 (1923); Kenworthy v. Williams, 5 Ind. 375, 377
(1854); In re Estate of Parlock, 486 N.E.2d 567, 569 (Ind. Ct. App. 1985).
These cases do not limit the statutory definition of a will contest. They
simply summarize the substantive grounds for an attack upon the validity of
a will where the admission to probate is procedurally valid. Indeed,
several appellate decisions state that any attack on the validity of the
probate of a will is subject to the requirements of section 17. Fitch v.
Maesch, 690 N.E.2d 350, 352 (Ind. Ct. App. 1998); In re Estate of Niemiec,
435 N.E.2d 999, 1001 (Ind. Ct. App. 1982) (“Actions to contest the validity
of a will or to resist a probate of a will must be filed within five months
after the will has been offered for probate.”).
In sum, the probate court correctly interpreted the Troxels’ petition
to reopen the estate as a will contest attacking the probate of Jack’s
will. The Indiana Code provides that interested parties have five months
to file a will contest after a will has been admitted to probate. Ind.
Code § 29-1-7-17 (1998). The Troxels did not file their petition until
August 7, 1998, over twelve months after the will had been admitted to
probate and almost two months after the estate was closed. This clearly
exceeds the statutory time limit for will contests and the probate court
correctly rejected their petition as untimely.
The Troxels contend that the probate court’s dismissal of their
petition imposes a burden on heirs-at-law to be “ever vigilant” to
determine if a will has been admitted to probate so that they might object
in a timely fashion. We do not agree. In the petition for the probate of
a will, the personal representative must inform the court only of the name
and residence of each of the persons named in the will so that the court
may give them notice of probate. Id. § 29-1-7-5(2) (1998). But no notice
is required to be given to those who would be intestate heirs if there is
no will.[2] Thus, if Jack’s will had been probated in a timely manner, the
Troxels, as heirs-at-law not named in the will, would have no statutory
right to notice. The statute puts the burden on interested parties to be
on alert for three years to a potentially disinheriting probate. If a will
is probated after that time, as here, notice by publication may well be
inadequate to put interested parties on notice that their rights may be
affected. Thus, we agree that the Troxels might have had a valid point if
they had been unaware of Joanne’s effort to probate the will.
This issue is not presented here, however. The Troxels had actual
notice of the probate and allowed the five months to expire. They could
have, but did not, invoke the three-years-from-date-of-death provision to
bar probate. Not having done so they waived that objection. We leave for
another day whether the passing of five months bars an interested person
who has no actual notice of an untimely effort to probate a will. That day
may never arrive, given that it took almost two centuries for the issue
presented by the Troxels to arise.
III. Due Process Claim[3]
Finally, the Troxels claim that because Jack’s will was not probated
within the three-year statute of limitations set out in Indiana Code
section 29-1-7-15.1(d), ownership of the twenty-four acre parcel passed to
them via the Indiana intestacy statute, Indiana Code section 29-1-2-1. In
other words, they argue that at the time of Jack’s death, or,
alternatively, when the three-year statute of limitations expired, the
title to the property became vested in the Troxels as fee simple owners
subject to Joanne’s life estate in one-third of the parcel. Therefore, the
Troxels claim that when the probate court erroneously admitted the will to
probate and allowed Joanne to take title to the parcel, it deprived the
Troxels of their property rights without due process of law. At the very
least, the Troxels argue, due process required that the probate court
directly notify them of the probate proceedings so that they could have an
opportunity to object. We agree that this too would raise a substantial
issue if it were presented. But the Troxels had actual notice of the
proceedings. Any property rights they had could have been lost by default
in a legal proceeding, and failure to present a timely will contest had
that result. Moreover, despite having submitted two briefs to the probate
court, the Troxels failed to raise the due process claim until their motion
to correct error. A party may not raise an issue for the first time in a
motion to correct error or on appeal. Evans v. Tuttle by Tuttle, 645
N.E.2d 1119, 1121 (Ind. Ct. App. 1995).
Conclusion
The judgment of the probate court is affirmed.

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
RUCKER, J., not participating.
-----------------------
[1] Although the Court of Appeals’ opinion in Cameron includes few facts, a
review of the record in that case reveals that the unsigned codicil was
admitted to probate, along with the properly executed will of Alice
Cameron, on May 17, 1965. The executor of the estate noticed two years
later that the codicil had not been properly recorded by the court and
filed a motion to correct errors in 1967. In response, the probate court
issued the nunc pro tunc order at issue in the case. The executor
testified that George Coggeshall, the primariy beneficiary under the will
and the appellant in Cameron, read the codicil before it was filed in May
1965.
[2] For the view that Indiana’s probate law is insufficiently protective of
potentially disinherited heirs, see Kent A. Jeffirs, Always the last to
know: No notice is good notice to disinherited family members who may
challenge the validity of a will, 40 Res Gestae, Oct. 1996, at 27-30.
[3] The Court of Appeals did not reach this issue because it found in the
Troxels’ favor on other grounds.