In re The Estate of Mason R. Foertsch, Deceased,
Marcus Foertsch, David Foertsch, and Brian Foertsch, Appellees. Debra S. Foertsch, Appellant,
from the Spencer Circuit Court The Honorable Jonathon A.
Dartt, Judge Trial Court Cause No. 74C01-1506-ES-21
ATTORNEYS FOR APPELLANT D. Andrew Nestrick Raymond P. Dudlo
Stoll Keenon Ogden PLLC Evansville, Indiana.
ATTORNEYS FOR APPELLEES David L. Jones David E. Gray Jones
Wallace, LLC Evansville, Indiana.
Summary and Issue
After Mason Foertsch ("Decedent") died in June
2015, the personal representative of his estate sought a
judicial determination of whether a certain specific bequest
in Decedent's will had been adeemed. The bequest in
question is described in the Second Codicil to Decedent's
will as funds held at Merrill Lynch. The Merrill Lynch
account no longer existed at the time of Decedent's
death, as he had transferred his investment account at
Merrill Lynch to a new brokerage firm several years prior to
his death. The trial court determined the bequest had not
been adeemed and directed distribution of Decedent's
estate accordingly. Debra Foertsch, Decedent's surviving
spouse, appeals, raising one issue for our review: whether
the trial court erred in determining the bequest of the
Merrill Lynch account had not been adeemed. Concluding the
trial court did not err because the specific bequest at issue
changed only in form, we affirm.
and Procedural History
On November 22, 2005, Decedent executed a will. Item Three,
subsection (g) of the will stated:
Any and all funds held in Legg-Mason, Oakmark, Advest and
Spencer County Bank shall be distributed to Richard A.
Wetherill as Trustee and the funds distributed to Debra Pund
pursuant to the provision set out in Item Five herein.
Appendix, Volume 2 at 29. Item Five of the will describes the
administration of a Qualified Terminal Interest Property
Trust ("Q-Tip Trust"). Item Five provides, in part,
that Debra Pund would receive annually the greater of the net
income generated by the Q-Tip Trust or $84, 000. No other
distributions were to be made from the Q-Tip Trust during
Debra's lifetime, and at her death, the remainder was to
be distributed to Decedent's grandsons, David, Brian, and
Marcus Foertsch (collectively, "Grandsons")
according to Item Seven of the will. At the time Decedent
signed the will, his broker of record was Fraser Schaufele, a
broker at Advest.
On February 14, 2006, Decedent executed a First Codicil to
the will that acknowledged he and Debra had married and
provided that any references to "Debra Pund" in the
will were changed to "Debra Foertsch." Id.
at 37. The First Codicil otherwise ratified the provisions of
In 2006, Merrill Lynch acquired Advest, absorbing
Advest's accounts and employees, including Mr. Schaufele.
On July 26, 2007, Decedent executed a Second Codicil to the
will that changed Item Three, subsection (g) to the
Any and all funds held in Legg-Mason, Oakmark and Merrill
Lynch shall be distributed to Richard A. Wetherill as Trustee
and the funds distributed to Debra Foertsch pursuant to the
provision set out in Item Five of my Last Will and Testament
dated November 22, 2005. Upon depletion of the Old National
Bank account in paying taxes, then, and upon that event, I
direct said Trustee to use the above accounts to pay said
Id. at 39. In October 2008, Mr. Schaufele left his
employment at Merrill Lynch and went to work at Raymond James
and Associates. Also in October 2008, Decedent directed
Merrill Lynch to transfer the assets in his account to a
newly opened Raymond James account "in kind."
Id. at 91. Decedent signed a Third Codicil to his
will on August 31, 2009. The Third Codicil made a number of
changes to the will, but did not change the provisions of
Item Three, subsection (g) or Item Five, with the exception
of naming an alternate trustee.
Mr. Schaufele served as Decedent's broker of record and
investment advisor from the early 2000s until Decedent's
death in 2015. Decedent regularly received the net income
generated from the Advest/Merrill Lynch/Raymond James account
and occasionally deposited additional money, but he never
drew on the corpus of the account. Decedent also sold
investments from time to time and reinvested the proceeds,
but he did not distribute proceeds from those transactions to
himself or others.
Decedent died on June 2, 2015. His will and the three
codicils to the will were admitted to probate on June 25,
2015. In July 2016, the personal representative of
Decedent's estate filed a petition for clarification of
account distribution seeking a ruling on whether the specific
bequest of any and all funds at Merrill Lynch had been
adeemed by extinction. Debra and the Grandsons filed
responses to the personal representative's
petition and the trial court held a hearing on the
matter. Following the hearing, the trial ...