APPEAL FROM THE MADISON CIRCUIT COURT, The Honorable Fredrick R. Spencer, Judge, Cause No. CE85-161.
Conover, J. Miller, P.j. and Garrard, P.j. concur.
Jack Lee Bonge (Bonge) as executor of the estate of Hortense Bonge Hull (Hull estate) appeals the Madison Circuit Court's judgment that Bettie Jo Risinger (Risinger), guardian of decedent's husband Raouel Basil Hull (Raouel), had timely filed an election against decedent's will although no prior court approval had been obtained to make such election.
This appeal presents a single issue, namely, whether the guardian of an incompetent surviving spouse must first obtain court authorization before filing on behalf of the incompetent an election to take against the will of a deceased spouse.
At the time Hortense and Raouel were married, they each had children of their own. No children were born of their marriage. Hortense died on September 9, 1985, her will was admitted to probate 9 days later on September 18, 1985. Although Hortense's will was executed while she and Raouel were married, it contained no provisions regarding Raouel. Notice of the opening of Hull's estate was duly published.
On January 15, 1986, Risinger, Raouel's daughter, was appointed his guardian. The next day she filed Raouel's election to take against Hortense's will with the probate court without having obtained a court order authorizing its filing on his behalf. After the time for filing of such elections had run, Raouel's guardian obtained a court order which retroactively authorized the prior filing.
Hull's estate then filed a motion for summary judgment which claimed Raouel's election was invalid. It was overruled. Hull's estate later filed an intermediate accounting which disregarded Raouel's election to take against the will. The trial court entered a judgment modifying the proposed distribution to include distribution to Raouel, finding Risinger had timely and effectively exercised Raouel's right of election to take against Hortense's will.
Three provisions of the probate code are of interest in this appeal.[Footnote 1] Hull's estate contends guardian Risinger's filing of Raouel's election to take against Hortense's will was invalid because the statute requires court approval before the guardian may do so. The estate further argues the court's subsequent authorization to file such election was ...