Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Estate of Foertsch

Court of Appeals of Indiana

December 7, 2017

In re The Estate of Mason R. Foertsch, Deceased,
v.
Marcus Foertsch, David Foertsch, and Brian Foertsch, Appellees. Debra S. Foertsch, Appellant,

         Appeal 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.

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         Appellant's 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.

         [¶3] 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 the will.

         [¶4] 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 following:

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 taxes.

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.

         [¶5] 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.

         [¶6] 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[1] and the trial court held a hearing on the matter. Following the hearing, the trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.