Daniel & Kimberly Lumbard v. Farmers State Bank (7/26/04 IndCtApp) [Estates & Trusts]
Baker, Judge
The Sixteenth Century British author Henry Fielding wrote, “If you make money your god, it will plague you like the devil.” In this cause, children have been turned against mother and mother against children because of money.[In this action to construe a trust] Grandson claims that the trial court erroneously admitted a purported will at trial as evidence. Moreover, Grandson claims that the powers of appointment given to Vivian G. Lumbard (Grandmother) in two different trust documents were never exercised because Grandmother’s will was never probated. Granddaughter contends that only one power of appointment was exercised, while Daughter maintains that both powers of appointment were exercised by Grandmother’s purported will. * * *
[Admission of Purported Will] Here, no party is attempting to probate Grandmother’s purported will. Moreover, the reason for [IC] 29-1-7-15.1(d) simply does not exist here because the property at issue is not being distributed via the intestacy laws inasmuch as the trust agreements specifically provide for their allocation. Finally, no party has ever alleged that Grandmother was incompetent when executing her will or that she was subject to undue influence. In sum, the reasons for [IC] 29-1-7-15.1(d) simply do not exist in this case and, thus, that statute does not apply here. Accordingly, while Grandmother’s purported will has no force as a will, it certainly expresses her desires as to the trust property and may be used to determine her intent. * * *
[Vivian Trust] In sum, Grandmother did all she could do while alive to express her intent to exercise her power of appointment over the Vivian Trust. The fact that the trustee’s attorney correctly construed Grandmother’s actions initially but then second-guessed himself does not affect Grandmother’s expression of her intent. As a result, the trial court did not err in holding that the purported will exercised the power of appointment granted over the Vivian Trust. * * *
[Family Trust] The uncontroverted evidence shows that the purported will, signed by Grandmother and witnessed by two persons, was a “Deed, Conveyance, Bill of Sale, Gift, or by any written instrument executed by [Grandmother].” Moreover, as previously stated, no charge of undue influence or incompetence has ever been lodged. Consequently, we must conclude that Grandmother successfully exercised her power of appointment over the Family Trust.
Conclusion. In light of the issues addressed, we conclude that the trial court did not err in admitting Vivian’s purported will into evidence. Moreover, we conclude that the trial court properly found that Vivian exercised her power of appointment under the Vivian Trust because our statute of limitations with respect to wills does not bar the introduction of a purported will to demonstrate that a power of appointment has been exercised. Additionally, the trial court did not err in finding that the exercise of the power of appointment under the Family Trust was exercised because Grandmother’s will was a “written document.” As a result of our decision, Daughter shall receive all property in the Vivian Trust. Daughter, Granddaughter, and Grandson shall each receive one-third of any property remaining in the Family Trust. Grandson’s share, however, is limited to the lesser of one-third of the property remaining in the Family Trust or Grandfather’s land—if any—held in the Family Trust.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Steven R. Kreps d/b/a Best Heating & Cooling v. Indiana Department of State Revenue (7/22/04 IndTaxCt. - Not for Publication) [Procedure]
Fisher, Judge
The issue is whether Kreps has established that he is entitled to relief under Indiana Trial Rule 60(B). * * *Posted by Marcia Oddi at July 26, 2004 02:28 PMIn short, Kreps’ petition does not explain why or how his petition should be considered timely filed. Taxpayers are presumed to know the law – by statute, Kreps was required to file his petition to this Court no later than June 12, 2003 (180 days after the 12/12/02 date the LOFs were issued by the Department). See A.I.C. § 6-8.1-5-1(g). See also Evansville Concrete Supply Co., Inc. v. Indiana Dep’t of State Revenue, 571 N.E.2d 1350, 1354 (Ind. Tax Ct. 1991) (citation omitted) (stating “all persons are charged with knowing their rights and remedies prescribed by statute”). Kreps relied on the assertions contained in his petition to oppose the Department’s motion to dismiss; that reliance resulted in dismissal because nothing in the petition demonstrated that Kreps had timely filed his petition. Kreps cannot now come to the Court expecting a different result.