ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Matthew Jon McGovern David P. Allen
Evansville, Indiana Salem, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 88S01-0703-CV-121
IN THE MATTER OF THE GUARDIANSHIP
OF E.N., ADULT.
_________________________________
Appeal from the Washington Circuit Court, No. 88C01-9906-GU-22
The Honorable Frank Newkirk, Jr., Special Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 88A01-0508-CV-338
_________________________________
December 12, 2007
Boehm, Justice.
We hold that the guardianship estate planning statute does not authorize dispositions of
the protected person’s entire estate.
Facts and Procedural History
E.N. married Donna Nolan in 1955. Two children, Shirley and Marvin, were born of the
marriage. During his marriage to Donna, E.N. apparently executed two wills, one in 1983 and
another in 1992 that poured over into a revocable trust. Both wills and the trust named Donna,
Shirley, Marvin, and their children as the beneficiaries.
In 1997, after over forty years of marriage, Donna filed for dissolution and the couple
separated. After the separation, E.N. resided with his brothers, William and Arville. In Decem-
ber 1997, while living with his brothers, E.N. executed a will drafted by Harry Paynter, his attor-
ney in the dissolution proceedings, in which he left his entire estate to his brothers and specifi-
cally disinherited his children. The dissolution became final on February 4, 1999, and shortly
thereafter E.N. executed a second will, also drafted by Paynter, restating his 1997 will. Concur-
rent with the execution of his wills, E.N. named William and Arville in his 1997 and 1999 pow-
ers of attorney and 1999 appointment of healthcare representative. The brothers were also
named beneficiaries of E.N.’s life insurance policy, pay-on-death account, and annuities.
E.N. suffered from Alzheimer’s disease. By early 1999, his mental condition had dete-
riorated, and his brothers had assumed his care and management of his affairs. The trial court
found that during this time, the brothers actively concealed E.N.’s whereabouts and restricted his
contacts with family, friends, and acquaintances. Ultimately, the brothers placed E.N. in the
Northwood Retirement Home, asserting that E.N.’s family was trying to poison him and instruct-
ing the staff not to disclose his presence to others.
On June 22, 1999, Shirley, represented by David Allen, who represented Donna against
E.N. in the dissolution, petitioned the Washington Circuit Court to impose a temporary guardian-
ship. Shirley was appointed E.N.’s temporary guardian on that date. In August 1999, after a
hearing, Shirley was appointed permanent guardian over the objection of E.N.’s brothers. In
January 2000, Judge Newkirk of the Washington Superior Court was appointed special judge in
the guardianship proceeding. Marvin was later appointed coguardian.
After the guardianship was established, E.N. was removed from the Northwood Retire-
ment Home and returned to the family farm where he had requested to live. Two months after
her appointment as guardian, Shirley resigned her position as a McDonald’s cashier and person-
ally undertook E.N.’s care, charging the guardianship six dollars per hour for paying bills, clean-
ing, cooking, and otherwise attending to E.N.’s needs. Shirley later unsuccessfully petitioned the
guardianship court to increase her hourly rate from six to ten dollars. The trial court found that
in August 1999, E.N. testified that “he was not aware of his brothers’ names on various accounts
and did not intend for them to be the beneficiaries of his estate.” In November 1999, E.N. exe-
cuted a will drafted by Attorney Allen naming Shirley and Marvin as the sole beneficiaries of his
estate. In 2001, Shirley placed E.N. in a different nursing home. She continued to charge the
guardianship for services, time spent visiting the nursing home, and mileage.
2
The record in the guardianship court includes a flurry of preliminary skirmishing from
the spring of 2000 until July 2002, when Shirley petitioned the guardianship court to implement
an estate plan on E.N.’s behalf under the statutory provision discussed below. The plan proposed
that all of E.N.’s property be placed in the “E.N. Revocable Trust” with Marvin as trustee. The
trust called for income and principal to be applied to E.N.’s support during his life, and upon his
death any remaining property was to be allocated between two trusts for the benefit of Shirley
and Marvin and their children. E.N.’s brothers objected to the proposed plan, and after a hearing
on the petition, the guardianship court approved the coguardians’ plan with an added provision
that gave the brothers five percent of E.N.’s net estate at death less any amounts spent by the
guardianship defending future litigation with the brothers.
In approving the amended plan by order dated October 14, 2003, the guardianship court
made several findings of fact. The guardianship court found that E.N. was not competent to
make any of the 1997 or 1999 wills and that E.N. lacked the capacity to look beyond the kind-
ness of those providing for his physical and emotional needs. The guardianship court further
found that E.N. was under his brothers’ influence when he executed his December 1997 and Feb-
ruary 1999 wills and that E.N. was under his children’s influence when he executed his Novem-
ber 1999 will. The court then found that a “reasonable and prudent person would provide the
bulk of his estate to his children upon their demonstration of love, concern, and care for him,
while providing a reasonable allowance to his brothers who assisted him and are now in their re-
tirement years as well.” The guardianship court also noted that the already extensive litigation
between E.N.’s brothers and children on a variety of fronts had “substantially depleted” E.N.’s
estate. The brothers appealed the guardianship court’s order approving the amended estate plan,
but the Court of Appeals dismissed that appeal on the ground that there was no final appealable
order.
E.N. died on May 7, 2004. On that date, Shirley and Marvin opened a second legal front
by petitioning the Washington Circuit Court to probate his November 1999 will. The brothers
objected to the probate of the November 1999 will, citing the guardianship court’s finding that
the will was invalid. In November 2004, while the brothers’ objection to the November 1999
will was pending in the probate court, Shirley and Marvin petitioned in the probate court to pro-
3
bate E.N.’s 1983 will, “excepting only those provisions therein for the benefit of Donna Nolan.”1
This will would have left everything to Donna, Shirley, and Marvin and did not mention E.N’s
brothers. The brothers objected to the probate of the 1983 will. At some point not reflected in
this record, Judge Davis of the Harrison Superior Court was appointed special judge in the pro-
bate proceedings. On January 20, 2005, all further probate proceedings were stayed pending the
resolution of all guardianship matters, including this appeal.
After E.N.’s death, his brothers and children continued to litigate in the guardianship
court over the coguardians’ final report and accounting. In July 2005, the brothers filed the cur-
rent appeal challenging the guardianship’s approval of the estate plan. The guardianship court
then terminated the guardianship “in all respects except as to those matters presently on appeal.”
The Court of Appeals affirmed the guardianship court’s approval of the estate plan. In the Mat-
ter of the Guardianship of E.N., 853 N.E.2d 960, 969 (Ind. Ct. App. 2006). It held that the stat-
ute authorized the proposed trusts because they applied E.N.’s assets first to his lifetime support.
Id. at 967. The Court of Appeals also found the statute contained no explicit ban on placing as-
sets in trust or rewriting a protected person’s will. Id. We granted transfer. 869 N.E.2d 453
(Ind. 2007) (table).
I. Testamentary Dispositions by Guardians
This case turns on the interpretation of Indiana’s guardianship estate planning statute,
Indiana Code section 29-3-9-4. Statutory interpretation is a question of law reviewed de novo.
Porter Dev., LLC v. First Nat’l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind. 2007) (citations
omitted).
1
Shirley and Marvin’s Petition to Probate Prior Will of Decedent refers to wills executed March 7, 1993,
and March 7, 1983. The petition alleges that the 1997 and 1999 wills are invalid because of the guardian-
ship court’s ruling as to competency, and that as a result the parties “are left” with the 1993 will. How-
ever, the petition seeks to probate only the 1983 will. It is unclear whether E.N. executed a will in 1993
or whether the petition contained a typographical error and intended to refer to the 1983 or 1992 will. In
either case, the petition does not explain why the 1983 will should be probated despite the existence in the
record of what appears to be a 1992 will executed by E.N. The record also does not contain a signed copy
of the 1983 will. Rather, it contains an unsigned copy attached as an exhibit to the petition. The record
does not reveal what, if any action was taken as to the 1993 will, if there was one, or why it did not re-
voke the 1983 will.
4
Indiana law allows for the appointment of a guardian to act in the best interests of a per-
son who is unable to care for himself or for his property. See Ind. Code §§ 29-3-1 to -13 (2004).
In general, the guardian has power to conduct the protected person’s affairs. Id. § 29-3-8-2.
Indiana Code section 29-3-9-4 specifically authorizes the guardian to take steps directed to estate
planning for the protected person.2 As part of these estate planning powers, a guardian may dis-
pose of the protected person’s “principal or income . . . in excess of that likely to be required for
the protected person’s future support.” Excess principal or income may be disposed of (1) to
minimize the protected person’s income or estate tax liability and (2) “for any other purpose”
when a disposition is in the best interests of the protected person or his or her property, spouse,
2
This provision in full reads:
Sec. 4. (a) Upon petition of the guardian (other than a temporary guardian) or any other person as ap-
proved by the court, and after notice to such persons as the court may direct, the court may, after hearing
and by order, authorize the guardian to apply or dispose of the principal or income of the estate of the pro-
tected person that the court determines to be in excess of that likely to be required for the protected per-
son’s future support or for the future support of the protected person’s dependents during the lifetime of
the protected person, in order to carry out the estate planning that the court determines to be appropriate
for the purposes of minimizing current and prospective income, estate, or other taxes. The court may ac-
cordingly authorize the guardian to make gifts, outright or in trust, on behalf of the protected person to or
for the benefit of the prospective legatees, devisees, or heirs, including any person serving as the pro-
tected person’s guardian, or to other individuals or charities, to whom or in which it is shown that the pro-
tected person had an interest. In addition, the court may also authorize the guardian to:
(1) apply or dispose of the excess principal or income for any other pur-
pose the court decides is in the best interests of the protected person or
the protected person’s property, spouse, or family;
(2) exercise or waive the right of the protected person to renounce or dis-
claim any interest in whole or in part devolving by testate or intestate
succession or by inter vivos transfer, including the right of the protected
person to surrender the right to revoke a revocable trust; or
(3) exercise or release any power of appointment that is vested in the
protected person.
(b) In a hearing upon a petition filed under subsection (a), the court shall determine whether the
planned disposition, renunciation, disclaimer, release, or exercise is consistent with the apparent intention
of the protected person, which determination shall be made on the basis of evidence as to the declarations,
practices, or conduct of the protected person or, in the absence of that type of evidence, upon the court’s
determination as to what a reasonable and prudent person would do under the same or similar circum-
stances as are shown by the evidence presented by the court.
(c) The guardian may examine the will of the protected person.
5
or family. In either case, the court must find that the disposition is “consistent with the apparent
intention of the protected person” based on the protected person’s declarations, practices, or con-
duct. If there is no evidence of the protected person’s intentions, the court may allow disposi-
tions that a reasonable and prudent person would make under the circumstances.
The extent, if any, that the guardianship estate planning statute authorizes dispositions of
the protected person’s entire estate either during life or at death is an issue of first impression.3
For several reasons, we think the legislature did not authorize such transfers.
First, the statute explicitly allows for “gifts” but does not authorize “devises.” Similarly,
although section 4(a) authorizes a variety of specific steps to avoid unnecessary estate taxes (in-
cluding giving to charity, relinquishing powers of appointment, and disclaiming interests in vari-
ous estates), it does not mention the writing, modification, or revocation of wills. Shirley and
Marvin cite Illinois’s estate planning statute in support of a guardian’s power to make testamen-
tary dispositions. The Illinois statute, however, specifically authorizes a guardian to modify the
protected person’s will or revocable trusts. 755 Ill. Comp. Stat. Ann. 5/11a-18(a-5)(11) (West
2007). The absence of language similar to that found in the Illinois statute suggests that Indi-
ana’s statute does not include the broad power the children claim.
Second, the statute allows the guardian to “apply or dispose” of “excess” principal and
income. Even if the trust assets remain available to support the protected person, the creation of
a revocable trust is a “disposition” or “application” of assets because it places the assets under
control of others and frees the assets from supervision of the guardianship court. The trust in this
case disposed of all E.N.’s assets, including those needed for his “future” support. It therefore is
not within the transfer contemplated by this statute.
Third, had the legislature intended to authorize dispositions effective at death, it surely
could have described that power in a simpler way by authorizing wills, trusts, and other estate
planning tools.
3
Shirley and Marvin contend that Boone County State Bank v. Andrews, 446 N.E.2d 618 (Ind. Ct. App.
1983), governs the outcome of this case. Boone County State Bank involved an earlier version of the
guardianship estate planning statute, and upheld inter vivos gifts of $6,000 from a ninety-eight year old
person’s estate valued at approximately $900,000. These gifts clearly fell within the guardian’s authority
to dispose of excess assets. Id. at 619.
6
Fourth, the principal focus of this statute is minimizing estate and inheritance taxes by
reducing the protected person’s assets through gifts and other estate planning mechanisms. The
obvious application of such a provision is to allow inter vivos gifts of amounts below the annual
gift tax exclusion to known beneficiaries. Gifts effective at the protected person’s death can also
reduce the taxable estate, but a disposition of an entire estate necessarily involves a transfer of
some assets that generates no tax benefit because of the minimum levels required to incur any
tax.
Fifth, if there is no evidence of the decedent’s desires, the intestate succession laws al-
ready tell us what the legislature believes is a reasonable and prudent disposition of property at
death.
Finally, Indiana Code section 29-1-5-8, which revokes all provisions in favor of a testa-
tor’s spouse upon divorce, also provides that with the exception of revocation upon divorce, “no
written will, nor any part thereof, can be revoked by any change in the circumstances or condi-
tion of the testator.” To the extent E.N. had a valid will, the estate plan effectively revoked it.
This legislation does not authorize overriding a will made while competent based on the pro-
tected person’s perceived post-incapacity desires. It may be desirable to provide a means other
than a pre-incapacity will or intestate succession to dispose of a protected person’s entire estate
at death. The current statutes, however, do not authorize the court to write a will for the pro-
tected person, nor do they authorize the practical equivalent of a will in the form of a trust that
disposes of the person’s assets beyond those determined to be in excess of the person’s needs.
The legislature is certainly free to authorize guardians to dispose of all property at the protected
person’s death, but as of now it has not done so.
II. Invalidation of Pre-Guardianship Wills
The trial court, perhaps in an effort to end these expensive hostilities, ruled on the valid-
ity of E.N.’s 1997 and 1999 wills at a time when E.N. was still living. The brothers contend that
the validity of a will is a matter to be resolved in the probate court through will contest proceed-
ings. The will contest statute allows any interested person to object to the probate of a will
within three months of the order admitting the will to probate. Ind. Code § 29-1-7-17. The order
admitting the will to probate requires a petition to probate a will, which must contain the date of
7
the testator’s death. Id. § 29-1-7-5. Thus, the brothers reason that a will contest may only occur
after the testator’s death. The children respond that Indiana’s declaratory judgment statute au-
thorized the trial court to determine the validity of E.N.’s wills. This statute provides that “[a]ny
person interested under a . . . will . . . may have determined any question of construction or va-
lidity arising under the instrument.” Id. § 34-14-1-2.
Generally, Indiana courts have required that the party seeking a declaratory judgment
have a “substantial present interest in the relief sought.” Hibler v. Conseco, Inc., 744 N.E.2d
1012, 1023 (Ind. Ct. App. 2001) (citing Town of Munster v. Hluska, 646 N.E.2d 1009, 1012
(Ind. Ct. App. 1995)). Although there is no Indiana case on point, some other jurisdictions have
recognized an exception to the present interest requirement
where a present right depends upon a decision as to a future right,
where there are special circumstances satisfying the court that it is
desirable to make a declaration presently as to future rights, or
where a present determination of a right contingent on a future
event may serve a real practical need of the parties for guidance in
their future conduct.
See generally Annotation, Questions Regarding Rights of Inheritance or Other Rights in Respect
of Another’s Estate After Death as Proper Subject of Declaratory Action Before Latter’s Death,
139 A.L.R. 1239 (1942). Whether or not Indiana law would recognize this exception, it would
not apply here because the ruling of the trial court did not require a determination of E.N.’s com-
petency in 1997 or 1999. The trial court had before it a petition to approve the children’s pro-
posed estate plan. Had the proposed estate plan disposed of only E.N.’s “excess” assets, it would
have been within the realm of steps authorized by the statute. This proposed estate plan disposed
of all E.N.’s assets. It was therefore not authorized by the guardianship estate planning statute,
and must be disapproved, regardless of the validity of E.N.’s prior wills, which remains a matter
for the probate court to consider under the will contest statutes.4
4
We do not hold that the guardianship court could never address issues of a protected person’s compe-
tency at the time a protected person made a will. Had the trial court sought to implement an authorized
plan involving, for example, inter vivos gifts of excess assets, competency to make the earlier wills might
have become an issue in so far as it bore on the identification of the persons whom E.N., while competent,
viewed as the objects of his bounty.
8
Conclusion
The guardianship court’s October 14, 2003, Order approving the guardian’s modified es-
tate plan is reversed. This case is remanded with instructions to close the guardianship by reason
of E.N.’s death. The disposition of his estate remains a matter for the probate court to consider.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
9