In the Matter of the Supervised Estate of Gary D. Kent, Deceased;
Cynthia Kerr, Appellee/Cross-Appellant-Petitioner. and In the Matter of the Educational Trust of the Grandchildren of Gary D. Kent; John David Kent, Kevin Kent, Jacob Anderson, Garrett Kerr, Griffin Kerr, Nicholas Kent, and David Kent, Appellants/Cross-Appellees -Respondents,
from the Morgan Superior Court The Honorable Peter R. Foley,
Judge Trial Court Cause Nos. 55D01-1602-ES-000022
ATTORNEY FOR APPELLANTS/ CROSS-APPELLEES Darla S. Brown
Sturgeon & Brown, PC Bloomington, Indiana
ATTORNEY FOR APPELLEE/ CROSS-APPELLANT Robert M. Hamlett
of the Case
Following the death of her father, Gary Kent
("Gary"), Cynthia Kerr ("Cynthia") filed
with the probate court a verified petition to revoke the
probate of Gary's will and, under a separate cause
number, a complaint to revoke the probate of the will. Under
a third cause number, Cynthia's brother John David Kent
("John") filed with the probate court a verified
petition to docket Gary's educational trust. Following a
consolidated hearing on the parties' cross-motions for
summary judgment, the probate court dismissed, with
prejudice, both the trust proceeding and the will contest.
Specifically, the court denied Cynthia's summary judgment
motion, which sought to enforce a family settlement agreement
that had been executed by Gary, John, and Cynthia before
Gary's death. And the court ordered the Personal
Representatives, John and Gary's cousin, Kevin Kent
("Kevin"), to "proceed with administration of
the probate estate pursuant to decedent's Last Will and
Testament, executed on June 23, 2008."
Cross-Appellant's App. at 25.
John and Kevin filed a notice of appeal, but this court
granted Cynthia's motion to dismiss that appeal after
John and Kevin failed to timely file an appellants'
brief. We retained jurisdiction, however, to hear
Cynthia's cross-appeal, where she presents a single
dispositive issue for our review, namely, whether Indiana
Code Section 29-1-9-1 permits the prospective beneficiaries
of a future inheritance to execute, prior to the
decedent's death, a family settlement agreement to
determine their anticipated rights or interests in the
decedent's estate. We reverse and remand, and we instruct
the trial court to enter judgment for Cynthia on her motion
to enforce the parties' agreement.
and Procedural History
On December 19, 2015, Gary, who was terminally ill, asked
John and Cynthia to sign a settlement agreement ("the
agreement") regarding "how their inheritance
[would] be divided" upon his death.
Cross-Appellant's App. Vol. 3 at 46. At that time, Gary
had a valid will, which provided in relevant part that the
majority of his personal property and his entire residuary
estate would be divided equally between John and Cynthia,
with a few personal items going to Gary's grandson Jacob
Anderson. The agreement provided as follows: Cynthia
would receive Gary's coin collection; John would receive
certain rental properties; John would "remove the
mortgage on [real estate on Hacker Creek Road] at his sole
expense"; and John and Cynthia would
"subdivide" the Hacker Creek Road property
"equally." Id. Gary, John, and Cynthia
each signed the agreement, and Gary's attorney notarized
it. Unbeknownst to Gary, a few days later, on December 26,
John executed a written notice purporting to rescind the
settlement agreement, and he notified Cynthia by certified
On January 27, 2016, Gary died. On February 9, John and Kevin
filed a verified petition for probate of Gary's will and
issuance of letters testamentary for supervised
administration in cause number 55D01-1602-ES-22
("ES-22").On March 21, Cynthia filed a verified
petition to revoke the probate of Gary's will. And on May
5, Cynthia filed a complaint to revoke the probate of the
will under cause number 55D01-1605-PL-659
("PL-659"). Following a hearing on the parties'
cross-motions for summary judgment, the probate court found
in relevant part that the agreement, which Cynthia had asked
the court to enforce,
does not meet the legal requirements of a "settlement
agreement" or "compromise" under I.C. §
29-1-9-1, et. seq. The Settlement Agreement was
executed prior to the decedent's death. At the time the
Settlement Agreement was executed, the parties to the
Settlement Agreement had no vested rights in decedent's
estate, but[, ] rather[, ] mere expectancy interests. In
addition, John David Kent rescinded the Settlement Agreement
prior to the death of the decedent. Based upon the undisputed
facts presented to the Court, the Settlement Agreement does
not meet the requirements of I.C. § 29-1-9-1.
Cross-Appellant's App. Vol. 2 at 24. Thus, the probate
court denied Cynthia's "motion to enforce" the
agreement. Id. at 25. The court also dismissed the
will contest and ordered that the Personal Representatives
"promptly proceed with administration of the probate
estate pursuant to decedent's Last Will and Testament,
executed on June 23, 2008." Id. This
Cynthia contends that the trial court erred when it denied
her motion for summary judgment to enforce the agreement.
"When reviewing the grant or denial of a motion for
summary judgment we stand in the shoes of the trial
court." SCI Propane, LLC v. Frederick, 39
N.E.3d 675, 677 (Ind. 2015) (internal quotation omitted).
Summary judgment is appropriate only when "the
designated evidentiary matter shows that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Ind. Trial
Rule 56(C). When "the challenge to summary judgment
raises questions of law, we review them de novo."
Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016)
(citing Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind.
2014)). Issues of statutory construction are questions of
law, which are particularly ...