In the Matter of the Supervised Estate of Gary D. Kent, Deceased;
Cynthia Kerr, Appellee/Cross-Appellant (Petitioner below). John David Kent and Kevin Kent, as Co-Personal Representatives of the Estate of Gary D. Kent, Deceased; Nicholas Kent; and David Kent, Appellants/Cross-Appellees (Respondents below),
Argued: February 8, 2018
from the Morgan Superior Court, Nos. 55D01-1602-ES-000022,
55D01-1603-TR-000038, and 55D01-1605-PL-000659 The Honorable
Peter R. Foley, Judge.
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLEE/CROSS-APPELLANT Robert M. Hamlett
ATTORNEY FOR APPELLANTS/CROSS-APPELLEES Darla S. Brown
Sturgeon & Brown, PC Bloomington, Indiana.
terminally-ill father tried to broker peace between two of
his children by having them agree between themselves how they
would divide some of his assets after his death. But the
peace was short lived. Before the father died, the son tried
to rescind the agreement. After the father died, the daughter
sued to enforce the agreement as part of the probate process.
This appeal presents the question of whether the agreement
between the children, executed before their father's
death, can be enforced using a chapter in the Probate Code
providing for the adjudicated compromise of controversies.
Because we find that the legislature intended the chapter to
apply only to post-mortem agreements, the daughter cannot use
this chapter of the Probate Code to enforce the agreement.
and Procedural History
2008, Gary D. Kent ("Gary") executed a will
dividing most of his estate equally between his daughter,
Cynthia Ann Kerr ("Cindy"), and one of his sons,
John David Kent ("David"). On December 16, 2015, at
the request of their terminally-ill father, Cindy and David
signed a document entitled "Settlement Agreement"
(the "Agreement") to "formalize their
agreement as to how their inheritance [would] be
divided." Cross-Appellant's App. Vol. 4, p. 8. The
Agreement provided that Cindy and David would each receive
certain pieces of personal and real property. Gary signed the
Agreement indicating that it "conform[ed] to [his]
wishes." About a week later, David sent a written notice
to Cindy purporting to rescind the Agreement.
January 27, 2016, Gary passed away. David and Kevin Kent, as
co-personal representatives under Gary's will (the
"Personal Representatives"), then petitioned the
trial court to admit Gary's will to
probate. The Personal Representatives did not refer
to the Agreement in their petition.
challenged the probate of Gary's will without the
Agreement and, in a motion for partial summary judgment,
requested that the Agreement be enforced either as a codicil
to Gary's will or as a settlement agreement pursuant to
Indiana Code chapter 29-1-9 (the "Compromise
Chapter"). The Personal Representatives filed their own
motion for summary judgment arguing that the Agreement was
invalid and unenforceable. After a hearing on the
parties' motions, the trial court found that the
Agreement was not a codicil to Gary's will and did not
fall within the scope of the Compromise Chapter. In reaching
the latter conclusion, the trial court relied upon the fact
that the parties executed the Agreement before Gary's
death. In addition, the trial court found that David
rescinded the Agreement. Accordingly, it denied Cindy's
motion, dismissed the will contest, and ordered the Personal
Representatives to administer Gary's estate according to
his will without reference to the Agreement.
appealed the trial court's ruling. She focused on
the enforceability of the Agreement under the Compromise
Chapter, but also briefly mentioned general principles of
contract law. The Court of Appeals reviewed the statutory
text in light of "the statute's underlying policy of
encouraging family settlement agreements and Indiana's
policy which favors freedom of contract[, ]" and it
concluded that "[n]o part of the statute clearly and
unambiguously prohibits pre-mortem family settlement
agreements." Kent v. Kerr (In re Supervised Estate
of Kent), 82 N.E.3d 326, 330-31 (Ind.Ct.App. 2017). It
buttressed this conclusion with analysis of a case that
reached the same conclusion in interpreting a Colorado
statute with some similarities to the Compromise Chapter.
Id. at 331-32 (citing Salcedo-Hart v.
Burningham, 656 Fed.Appx. 888, 892-93 (10th Cir. 2016)
(unpublished) (interpreting Colo. Rev. Stat. §
15-12-912)). The Court of Appeals went on to find that there
was adequate consideration for the Agreement, and David's
purported rescission was a nullity because he did not show he
had a right to rescind the Agreement. Id. at 332-33.
As a result, the Court of Appeals reversed the trial court
and remanded with instructions to enter judgment for Cindy
and to enforce the Agreement. Id. at 333.
granted the Personal Representatives' petition to
transfer, thereby vacating the Court of Appeals opinion.
See Ind. Appellate Rule 58(A).
reviewing the grant or denial of a motion for summary
judgment we stand in the shoes of the trial court."
City of Lawrence Utils. Serv. Bd. v. Curry, 68
N.E.3d 581, 585 (Ind. 2017) (citation omitted). Summary
judgment is appropriate "if 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).
Although they aid our review, the findings of fact and
conclusions of law a trial court may enter in support of its
judgment do not bind us. Knighten v. E. Chicago Hous.
Auth., 45 N.E.3d 788, 791 (Ind. 2015). Issues of
statutory construction present questions of law, which we
review de novo. Curry, 68 N.E.3d at 585. This
standard "remains unchanged when, as here, the parties
file cross-motions for summary judgment." In re Ind.
State Fair Litig., 49 N.E.3d 545, 548 (Ind. 2016).
The Compromise Chapter applies only postmortem.
Compromise Chapter of our Probate Code provides a method by
which interested parties may compromise certain contests or
controversies about a will, estate, or testamentary trust.
Ind. Code ch. 29-1-9 (2004). Upon making such an agreement,
any interested person can submit it for court approval. I.C.
§ 29-1-9-2(b). If the court finds that the agreement
complies with statutory requirements (including that there is
a good faith contest or controversy), it must "make an
order approving the agreement and directing [its
execution]." I.C. § 29-1-9-3.
one of the Compromise Chapter, which lies at the center of
this dispute, defines the specific types of contests and
controversies that fall within the chapter's scope and