In the Matter of the Supervised Estate of Gary D. Kent John David Kent and Kevin Kent, as Co-Personal Representatives of the Estate of Gary D. Kent Nicholas Kent and David Kent v. Cynthia Kerr

FILED
Jun 19 2018, 4:12 pm
CLERK
Indiana Supreme Court
Court of Appeals
IN THE and Tax Court
Indiana Supreme Court
Supreme Court Case No. 55S01-1712-ES-00747
In the Matter of the Supervised Estate of
Gary D. Kent, Deceased;
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),
–v–
Cynthia Kerr,
Appellee/Cross-Appellant (Petitioner below).
Argued: February 8, 2018 | Decided: June 19, 2018
Appeal 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
On Petition to Transfer from the Indiana Court of Appeals,
No. 55A01-1612-ES-02907
Opinion by Justice Goff
Chief Justice Rush and Justices David and Massa concur.
Justice Slaughter dissents.
Goff, Justice.
A 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.
Factual and Procedural History
In 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.
On 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
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probate. 1 The Personal Representatives did not refer to the Agreement in
their petition.
Cindy 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.
Cindy appealed the trial court’s ruling. 2 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
1 The Personal Representatives also sought to docket an educational trust Gary established for
the benefit of some of his grandchildren. While the parties and the trial court handled the
trust proceedings alongside the probate proceedings, this appeal does not directly involve the
trust.
2 Two of Gary’s grandchildren, Nicholas Kent and David Kent (John David Kent’s son),
initially appealed the trial court’s ruling. However, they failed to file an appellate brief. On
Cindy’s motion, the Court of Appeals dismissed the grandchildren’s appeal but retained
jurisdiction to hear Cindy’s appeal. For all practical purposes thereafter, Cindy took on the
role of the appellant, and the Personal Representatives took on the role of the appellees.
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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 F. App’x 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.
We granted the Personal Representatives’ petition to transfer, thereby
vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A).
Standard of Review
“When 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).
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Discussion and Decision
I. The Compromise Chapter applies only post-
mortem.
The 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. 3
Section 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 prescribes the legal effect of their
compromise. It provides:
The compromise of any contest or controversy as to:
(a) admission to probate of any instrument offered as the last
will of any decedent,
(b) the construction, validity or effect of any such instrument,
(c) the rights or interests in the estate of the decedent of any
person, whether claiming under a will or as heir,
(d) the rights or interests of any beneficiary of any
testamentary trust, or
(e) the administration of the estate of any decedent or of any
testamentary trust,
whether or not there is or may be any person interested who is
a minor or otherwise without legal capacity to act in person or
3These agreements are sometimes called “family agreements” or “family settlement
agreements.”
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whose present existence or whereabouts cannot be ascertained,
or whether or not there is any inalienable estate or future
contingent interest which may be affected by such compromise,
shall, if made in accordance with the provisions of this article,
be lawful and binding upon all the parties thereto, whether
born or unborn, ascertained or unascertained, including such as
are represented by trustees, guardians of estates and guardians
ad litem; but no such compromise shall in any way impair the
rights of creditors or of taxing authorities.
I.C. § 29-1-9-1.
This appeal is about timing: the parties disagree as to when contests or
controversies regarding a will, estate, or testamentary trust may be settled
using the Compromise Chapter. Cindy argues that such a contest or
controversy can be settled under the chapter either before or after a
person dies. To the contrary, the Personal Representatives assert that
parties can use this statutory scheme to settle a contest or controversy
only after the person’s death.
A. The language the legislature used in the Compromise
Chapter itself shows that it applies only post-mortem.
Our primary goal in reviewing statutes is to determine and follow the
legislature’s intent. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016). “The
best indicator of legislative intent is the statutory language, and where the
statute is clear and unambiguous, we apply it as drafted without resort to
the nuanced principles of statutory interpretation.” Crowel v. Marshall Cty.
Drainage Bd., 971 N.E.2d 638, 646 (Ind. 2012) (internal citations omitted).
However, if the statutory language is open to more than one reasonable
interpretation, the statute is ambiguous, and “we resort to the rules of
statutory interpretation to fulfill the legislature’s intent.” Day v. State, 57
N.E.3d 809, 813 (Ind. 2016).
We see no clear and unambiguous statement in the Compromise
Chapter addressing when a contest or controversy may be compromised.
The chapter could reasonably be interpreted as either allowing both pre-
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and post-mortem agreements or allowing only post-mortem agreements.
Therefore, it is ambiguous and open to judicial interpretation.
When interpreting a statute, “we are mindful of both what it does say
and what it does not say.” ESPN, Inc. v. Univ. of Notre Dame Police Dep’t,
62 N.E.3d 1192, 1195–96 (Ind. 2016) (internal quotation marks and citations
omitted). “We may not add new words to a statute which are not the
expressed intent of the legislature.” Ind. Alcohol and Tobacco Comm’n v.
Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017). We give undefined
terms their plain and ordinary meaning, and we may consult English
language dictionaries when they are helpful in determining that meaning.
State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016). But “[w]here the General
Assembly has defined a word, this Court is bound by that definition . . . .”
Consolidation Coal Co. v. Ind. Dep’t of State Revenue, 583 N.E.2d 1199, 1201
(Ind. 1991).
In drafting the Compromise Chapter, the legislature consistently used
terms indicating that a contest or controversy can be compromised only
after a person dies. For example, in all but one of the categories of contest
or controversy subject to compromise, the legislature used or referred to
the term “decedent.” I.C. § 29-1-9-1(a)–(c), (e). A person must die to
become a decedent. I.C. § 29-1-1-3(a)(4) (Supp. 2015) (“’Decedent’ means
one who dies . . . .”). The legislature likewise provided that certain
contests or controversies concerning the “estate of the decedent” can be
resolved via the Compromise Chapter. I.C. § 29-1-9-1(c), (e) (2004). Since
a person becomes a decedent only upon death, there is no “estate of the
decedent” until the person dies. The statute also allows for the
compromise of a contest or controversy concerning a testamentary trust.
I.C. § 29-1-9-1(d)–(e). A testamentary trust is created according to the
terms of a person’s will when that person dies—not before. See
Testamentary Trust, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
2362 (2002) (defining the term as “a trust created by the terms of a will”);
Testamentary Trust, BLACK’S LAW DICTIONARY 1747 (10th ed. 2014)
(defining the term as “[a] trust that is created by a will and takes effect
when the settlor (testator) dies”). These terms evidence the legislature’s
intent that the Compromise Chapter apply only to post-mortem
compromises.
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The legislature also connected some compromises under the
Compromise Chapter to specific activities that can happen only after a
person dies. First, contests or controversies regarding admitting a will to
probate can be compromised according to this chapter, I.C. § 29-1-9-1(a),
but a person’s will can be admitted to probate only after the person dies,
see, e.g., I.C. § 29-1-7-13(a) (requiring that the court find “that the testator is
dead” before admitting an offered will to probate). Second, the
Compromise Chapter can be used to settle a contest or controversy related
to administration of a decedent’s estate, I.C. § 29-1-9-1(e), but
administration of the decedent’s estate starts only after the person dies,
see, e.g., I.C. § 29-1-7-1(a) (determining venue “for administration of an
estate” based on where the person died or where the person’s property
was at the time of death or was moved after death). Third, parties can
compromise a contest or controversy as to “the rights or interests in the
estate of the decedent of any person, whether claiming under a will or as
heir,” I.C. § 29-1-9-1(c), but a person cannot file a claim against the
decedent’s estate before the person dies and the estate exists.
Additionally, claims against a decedent’s estate must be filed with the
court in which the estate is being administered, I.C. § 29-1-14-1(a), and, as
just discussed, administration starts only after death. These bases for
statutory compromises provide further evidence that the legislature
intended the Compromise Chapter to apply only after a person’s death.
By its own terms, the Controversy Chapter applies to agreements
entered into after the relevant person’s death. Notably absent from the
text of the chapter is any language whereby it would apply to pre-mortem
agreements. We cannot add new words to a statute but are bound to
apply statutes as the legislature has written them. The legislature wrote
the Controversy Chapter to apply only to post-mortem agreements.
B. Finding that the Compromise Chapter applies only
post-mortem complies with its stated purpose.
In addition to the statutory text, the stated purpose of the Compromise
Chapter supports our conclusion that the chapter applies only post-
mortem. “In determining legislative intent, we ‘consider the objects and
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purposes of the statute . . . .’” Kitchell v. Franklin, 997 N.E.2d 1020, 1026
(Ind. 2013) (quoting Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind.
2003)). The chapter’s purpose is “to set up legal machinery whereby
parties having an interest in a decedent’s estate may compromise any
difference they may have with reference to a division of the corpus of the
estate, and obtain a court order approving the compromise.” I.C. Ann. §
29-1-9-1, 1953 cmt. (West 2018) (comment provided by the Indiana Probate
Code Study Commission). 4 Like the statutory text itself, this statement of
purpose presumes someone has died and has become a decedent with an
estate. As discussed above, a person becomes a decedent only upon
death, and a decedent’s estate can arise only once there is a decedent—i.e.,
once someone dies. Moreover, for purposes of this chapter, there is no
“corpus of the estate” until a person dies. The corpus of the estate is the
decedent’s real and personal property, see I.C. § 29-1-1-3(a)(9) (Supp. 2015)
(defining “estate”), and this property cannot be identified and brought
into the estate until the person’s death, see, e.g., I.C. § 29-1-12-1 (Supp.
2013) (describing the process of inventorying a decedent’s probate estate);
I.C. § 29-1-13-1 (Supp. 2007) (directing the personal representative to take
possession of the decedent’s real and personal property). This
presumption of a decedent with an estate shows the legislature’s intent
that parties use the Compromise Chapter only after a person has died.
C. Indiana courts have not directly addressed the issue, but
our case law lends more support to the conclusion that
the Compromise Chapter applies only post-mortem.
Neither this Court nor the Court of Appeals has directly addressed the
question raised in this appeal. However, post-mortem compromises have
been the norm in Indiana for at least 130 years, both before and after our
4Indiana Code section 29-1-1-4 provides that courts may consult the comments of the Indiana
Probate Code Study Commission “to determine the underlying reasons, purposes and policies
of [the Probate Code]” and “as a guide in [the Probate Code’s] construction and application.”
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current Probate Code was enacted. 5 See, e.g., Shuee v. Shuee, 100 Ind. 477,
478 (1885) (describing an agreement whereby a widow purported to
assign her interest in her deceased husband’s estate); Wright v. Jones, 105
Ind. 17, 27, 4 N.E. 281, 287 (1886) (stating that “[t]he settlement made after
the death of Mrs. Jones was a family settlement”); Eissler v. Hoppel, 158
Ind. 82, 85, 62 N.E. 692, 693 (1902) (examining an agreement resolving
disputes about “the distribution of the patrimony”); Cornet v. Guedelhoefer,
219 Ind. 200, 209–13, 36 N.E.2d 933, 936–37 (analyzing an agreement
entered to settle a will contest filed after the testator’s death), clarified on
reh’g, 219 Ind. 216, 37 N.E.2d 681 (1941); Estate of McNicholas v. State, 580
N.E.2d 978, 979 (Ind. Ct. App. 1991) (stating that the decedent’s daughters
entered into the settlement agreement, pursuant to the Compromise
Chapter, after their mother died); Yeley v. Purdom (In re Supervised Estate of
Yeley), 959 N.E.2d 888, 890–91 (Ind. Ct. App. 2011) (reviewing a purported
settlement agreement executed after the testator’s death under the
Compromise Chapter).
Cases that might, at first blush, appear to provide support for the idea
that pre-mortem family settlement agreements could be considered
“compromises” under the Compromise Chapter ultimately fail to carry
weight here. One court used the term “family agreement” in describing a
pre-mortem agreement adjusting rights in real property. Hadley v. Kays,
121 Ind. App. 112, 125–29, 98 N.E.2d 237, 244–45 (1951), in banc. But this
case was decided before the Probate Code’s enactment, and it involved
only an adjustment of property rights—not a compromise of the kind
contemplated by the Compromise Chapter. Thus, it is not applicable here.
Similarly, some cases have described a pre-mortem transaction as “in the
nature of a family settlement agreement” and enforced it. See Colbo v.
5We acknowledge that “[c]are must be taken in evaluating court decisions before 1954 in the
probate field because of the extent to which they may have been influenced by principles of
law repudiated or varied by the Probate Code.” Markey v. Estate of Markey, 38 N.E.3d 1003,
1007 (Ind. 2015) (quoting 1A John S. Grimes, Henry's Probate Law and Practice of the State of
Indiana § 5 at 22 (7th ed. 1978)) (alteration from original). However, the continued prevalence
of post-mortem agreements shows that the principles of law supporting these agreements
remain valid.
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Buyer, 235 Ind. 518, 525, 134 N.E.2d 45, 49 (1956); Baker v. Pyatt, 6 108 Ind.
61, 68, 9 N.E. 112, 116 (1886). Yet, as in Hadley, the agreements in Colbo
and Baker did not settle a contest or controversy regarding a will, estate, or
testamentary trust but just effected transfers of property. Colbo, 235 Ind. at
521–22, 134 N.E.2d at 47–48; Baker, 108 Ind. at 63–64, 9 N.E. at 114. In sum,
none of these cases support Cindy’s position that the Compromise
Chapter can be used to enforce pre-mortem agreements. 7
With these cases and the text and purpose of the Compromise Chapter
in mind, we note that it is a fundamental legal principle that, in order to
rely on a statute, the person or thing must fit within the statute’s scope.
This principle applies even to agreements that the law favors, like family
settlement agreements. Knepper v. Eggiman, 177 Ind. 56, 61–62, 97 N.E. 161,
163 (1912). See also In re Estate of Garwood, 272 Ind. 519, 531–33, 400 N.E.2d
758, 766 (1980) (refusing to enforce a purported family settlement
agreement pursuant to the Compromise Chapter because it did not meet
the statutory requirements). The Compromise Chapter contemplates only
post-mortem agreements. The Agreement here is a pre-mortem
agreement. Thus, the Agreement does not fall within the scope of the
Compromise Chapter, and Cindy cannot use that mechanism to enforce
it. 8
6 We notice that this name is spelled “Pyatt” in the Indiana Reports but “Pyeatt” in the North
Eastern Reporter. Because the Indiana Reports were the official reporter of this Court at the
time, we follow that spelling.
7Likewise, Cindy’s cases from other jurisdictions do not aid our analysis here because Indiana
law is different. The Compromise Chapter can be used to compromise a contest or
controversy that falls within one of only five specific categories. See I.C. § 29-1-9-1(a)–(e).
This “contest or controversy” requirement is an important part of the chapter, but it is not
present in all other jurisdictions. See Machen v. Machen, 385 S.W.3d 278, 282 (Ark. 2011) (“It is
not necessary that there be a previous dispute or controversy between the members of the
family before a valid family settlement may be made.”); Colo. Rev. Stat. Ann. § 15-12-912
(West 2018) (omitting a “contest or controversy” requirement).
8To be clear, we have not closed the courthouse doors to these types of agreements. Rather,
we have held, in light of the statute’s text and purpose as well as our precedent, merely that
parties cannot use one particular method—the Compromise Chapter—to enforce them.
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II. At this stage of the litigation, we find it
inappropriate to rule on David’s purported
rescission or to review the Agreement under
principles of general contract law.
Having answered the primary question of this appeal–whether Cindy
can use the Compromise Chapter to enforce the pre-mortem Agreement–
in the negative, only two separate loose ends remain to be tied up. Both
the trial court and the Court of Appeals considered whether David
properly rescinded the Agreement, and the Court of Appeals reviewed
the adequacy of consideration supporting the Agreement. At this stage of
the litigation, we find it inappropriate to rule on either issue.
Given the lack of supporting evidence at this point, any final
determination as to whether David properly rescinded the Agreement is
premature. As our Court of Appeals has noted, a party does not have an
automatic right to unilaterally rescind a contract, and a party seeking
unilateral rescission generally must show that there is a basis to support
the rescission. See, e.g., Gabriel v. Windsor, Inc., 843 N.E.2d 29, 45 (Ind. Ct.
App. 2006); Poppe v. Jabaay, 804 N.E.2d 789, 796 (Ind. Ct. App. 2004). Here,
we are “limited to the designated evidence before the trial court,” Manley
v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013) (citing T.R. 56(H)), but that
evidence sheds little light on the basis for David’s purported rescission. In
fact, the only substantive evidence designated on the issue is the rescission
notice itself. See Designation of Materials in Support of Motion for
Summary Judgment, Cross-Appellant’s App. Vol. 5, p. 41, ¶ 4. While the
notice provides a three-sentence explanation for David’s desire to rescind
the Agreement, the notice alone—without additional evidence,
explanation, or argument—is conclusory and does not establish a basis for
David to unilaterally rescind the Agreement. Thus, the trial court
prematurely concluded that David rescinded the Agreement.
Additionally, we decline to address the enforceability of the Agreement
according to general contract law for two reasons. First, although Cindy’s
briefing before this Court and the Court of Appeals hints at the general
enforceability of the Agreement outside the probate context, Cindy’s
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counsel clarified at oral argument that—at this point—she seeks
enforcement of the Agreement only pursuant to the Compromise Chapter.
See Oral Argument at 37:25–38:00 (responding to a question from the
Court as to whether Cindy’s argument was that the Agreement complied
with the Compromise Chapter or that the Agreement was an enforceable
agreement apart from the Probate Code by stating that “the agreement, as
written, meets all the requirements of 29-1-9-1 save for submission to the
court”). Second, even if counsel had not clarified the point, we could not
address any potential argument regarding the Agreement’s enforceability
under general contract principles because the trial court record was not
fully developed on the issue. This is not surprising since, before the trial
court, Cindy sought to enforce the Agreement just as a codicil to Gary’s
will or as a compromise under the Compromise Chapter—not as an
independent contract according to general contract law. See Motion for
Partial Summary Judgment, Cross-Appellant’s App. Vol. 5, pp. 23–24, ¶ F.
Under these circumstances, we will not analyze the enforceability of the
Agreement according to general principles of contract law.
Conclusion
Today we hold that the Compromise Chapter may be used to enforce
only post-mortem compromises. As a result, Cindy may not use the
chapter to enforce her pre-mortem Agreement with David. We also find it
inappropriate to enter judgment on David’s purported rescission of the
Agreement or to consider the Agreement’s enforceability according to
general contract law. Accordingly, we affirm the trial court’s order and
findings, except for its alternative finding that David rescinded the
Agreement, and remand for further proceedings consistent with this
opinion.
Rush, C.J., and David and Massa, JJ., concur.
Slaughter, J., dissents with separate opinion.
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Slaughter, J., dissenting.
I respectfully dissent from the Court’s conclusion that the compromise
chapter of our Probate Code, see I.C. ch. 29-1-9, does not apply to family
settlement agreements entered into before the decedent’s death. In my
view, such agreements are valid and enforceable; they are consistent with
our State’s longstanding policy of encouraging freedom to contract; and
nothing in the compromise chapter expressly prohibits them. I agree with
the Court of Appeals’ thoughtful treatment of these issues and would
adopt its opinion in full.
As our Court recognizes, there is “no clear and unambiguous statement
in the Compromise Chapter addressing when a contest or controversy
may be compromised.” [Op. 6.] I agree with the Court’s account of what
that chapter does and does not say. But I draw a very different conclusion
about what to make of this acknowledged absence of a “clear and
unambiguous statement” barring ante-mortem agreements. Consistent
with our precedent, we should not conclude that the chapter forecloses
such agreements, especially since it does not do so in “clear and
unambiguous” terms.
[B]ecause we value the freedom to contract so highly, we will
not find that a contract contravenes a statute unless the
language of the implicated statute is clear and unambiguous
that the legislature intended that the courts not be available for
either party to enforce a bargain made in violation thereof.
Cont’l Basketball Ass’n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind. 1996)
(quoted in Matter of Estate of Kent, 82 N.E.3d 326, 331 (Ind. Ct. App. 2017),
trans. granted).
Because the compromise chapter does not expressly prohibit ante-
mortem agreements, I would hold that such agreements are valid and
enforceable under the chapter. On this record, that means Cindy and
David, as prospective beneficiaries of their father’s estate, could determine
their anticipated interests in his estate even before he died and have their
agreement enforced in the probate court with jurisdiction over his estate.
From the Court’s contrary decision, I respectfully dissent.
ATTORNEY FOR APPELLEE/CROSS-APPELLANT
Robert M. Hamlett
Carmel, Indiana
ATTORNEY FOR APPELLANTS/CROSS-APPELLEES
Darla S. Brown
Sturgeon & Brown, PC
Bloomington, Indiana
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