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Casenotes

Indiana

Wills

In re Estate of Kalwitz, 923 NE2d 982 (Ind Ct App, 2010).

Facts:Obed and Helen Kalwitz died in 1989 and 1995 respectively. Two of their children, Eugene Kalwitz (Eugene) and Sharon Grieger (Sharon) were appoint co-personal representatives for the two estates. The two parties had a tumultuous relationship that resulted in a decade of lawsuits and disputes and eventually ended in 2006 with a Mediation Settlement Agreement after the court ordered the parties to seek mediation.

As part of the mediation agreement, a series of personal representatives&€™ deeds were created. All were prepared by attorneys, and signed by Eugene and Sharon, but the siblings did not have the opportunity to personally review the contents. One deed erroneously conveyed a property to "Eugene D. Kalwitz and Sharon K. Grieger, as tenants in common" rather than to Eugene personally. The parties did not notice at the time. In December 2007, the trial court entered an order closing the two estates and discharging Eugene and Sharon as co-personal representatives.

Eugene discovered the mistake in December 2008, a year after the close of the estates. In March 2009, he filed a petition to reopen the estate in order to correct the mistake, arguing that he was wrongfully deprived of his inheritance. Sharon alleged that Eugene&€™s petition was untimely, and filed a motion for summary judgment. The trial court entered summary judgment on the reopening of the estate in favor of Sharon. Eugene appealed.

Holding:Affirmed. The court concluded that the operative question for Eugene&€™s appeal was whether Indiana Code Section 29-1-17-13 (Section 13) or Indiana Code Section 29-1-17-14 (Section 14) applied to the case. Section 13 grants a one year period from the date of discharge to reopen the estate for cases based solely upon mistake, fraud, or willful misconduct. Section 14 provides for the usual six year statute of limitations.

The court concluded that Section 14 was designed to reopen estates where assets where left unadministered in the final settlement. The main purpose, the court concluded, was to reach assets that escaped the initial administration. Section 13, on the other hand, is intended for those cases where an heir alleges representative misconduct or negligence in some way — even if the individual is not suing the representative directly.

The court concluded that Eugene was attempting to open the estate to fix a scrivener&€™s error in the original administration. This, according to the court, meant that the asset had originally been administered. Therefore, Eugene&€™s recourse was under Section 13. Because Section 13 allowed for a one year statute of limitations and Eugene filed his claim 18 months after the closing of the estates, the court determined that the trial court had correctly decided to bar Eugene&€™s petition to reopen the estate.

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