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COA: Pre-Death Family Will Settlement Agreement Enforceable

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COA: Pre-Death Family Will Settlement Agreement Enforceable

Dave Stafford for www.theindianalawyer.com

Ruling on a matter of first impression Friday, the Indiana Court of Appeals found that family members may enter into an enforceable settlement agreement regarding the distribution of assets from an estate before the testator’s death.

The question arose in a Morgan County case, In the Matter of the Supervised Estate of Gary D. Kent, Deceased, et al. v. Cynthia Kerr,
55A01-1612-ES-2907. Before Gary D. Kent died, he asked his children, Cynthia Kerr and John David Kent, to sign a settlement agreement in December 2015 specifying how their inheritance would be divided upon his death. The father had a valid will calling for an equal division of the estate, but the agreement specifically outlined who would receive particular property and satisfy a mortgage, among other things.

A week after the siblings signed the agreement that was notarized by their father’s lawyer, John executed a written notice that he was rescinding the agreement and sent it to Cynthia by certified mail. Gary died the next month, after which John and Kevin, a cousin of Gary’s who was a personal representative, filed a petition to probate the will. Cynthia challenged the probate action and asked the trial court to enforce the settlement agreement. She argued I.C. 29-1-9-1 permits prospective beneficiaries of a future inheritance to execute a family settlement before the decedent’s death. The trial court rejected her motion for summary judgment, leading to this appeal.

The COA reversed and remanded to the trial court to enter judgment on Cynthia’s motion to enforce the agreement. The panel’s statutory interpretation noted Indiana case law favors the strong presumption of the enforceability of contracts.

“Cynthia presents an issue of first impression for our courts, namely, whether Indiana Code Section 29-1-9-1 permits family settlement agreements to be executed prior to a decedent’s death,” Judge Edward Najam wrote for the court. “… (W)e hold that Indiana Code Section 29-1-9-1 does not prohibit pre-mortem family settlement agreements.

“John contends only that he had a right to rescind the agreement because Gary was still alive when he executed the rescission. But John does not support that contention with citation to authority, and we are not aware of any such authority. In sum, the agreement is supported by adequate consideration, and John’s purported rescission was a nullity. The trial court erred when it denied Cynthia’s motion to enforce the agreement,” Najam wrote.

 

 

FEET OF CLAY By Jim Redwine

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Gavel Gamut By Jim Redwine

www.jamesmredwine.com

FEET OF CLAY?

William Shakespeare had Marc Antony preach these words at Julius Caesar’s funeral:

“The evil that men do lives after them; the good is oft interred with their bones.”

Act III, Scene 2

Antony went on to list Caesar’s accomplishments in addition to his being ambitious. There was some good, some bad. Perhaps the citizens of Rome should have erected a partial statue of Caesar honoring just the good parts.

This could be a solution to our current controversy over monuments to historic figures. A committee could be composed of people who admire the works of a now dead leader and those who find the figure’s behavior flawed. A few examples might be helpful.

George Washington survived Valley Forge, presided over the Constitutional Convention and refused the opportunity to be named an emperor. On the other hand he owned hundreds of slaves and helped enshrine slavery into our legal system. The Committee might consider cutting the Washington Monument in half.

Thomas Jefferson was responsible for the Bill of Rights that guaranteed individual liberty but only to twenty-one year old white males. He also owned slaves and had children by one of them. Today such an employer/subject relationship would result in severe censure. Perhaps the Committee might recommend the Jefferson Memorial be closed every other week.

As we search for unblemished heroes to honor we could consider Abraham Lincoln who issued the Emancipation Proclamation. However, he at first averred slavery would be preferable to the disintegration of the Union and the Proclamation did not free all slaves just those in the states of the Confederacy. The Committee could maybe have a disclaimer added as a placard around his statue’s neck.

Andrew Jackson committed adultery, captured Seminole Indians under a flag of truce and as president created The Trail of Tears. On the other hand, he was a courageous and victorious military leader. A short bronze bust could replace his heroic sized statue.

As for Mount Rushmore the Committee would have to remove at least 3 of the 4 figures. Of course, Teddy Roosevelt had a penchant for shooting animals which might upset the ASPCA; so all 4 might have to be erased.

Right here in Posey County, Indiana we have a dilemma about what to do with our most famous citizen. Alvin Peterson Hovey was once Posey Circuit Court Judge, a Civil War general for the Union and our only governor. Unfortunately, he also was instrumental in helping to cover up the murders of seven Black men in October 1878. One of those Black men was shot and stuffed into a hollow tree on a farm owned by Hovey. Will the Committee have to remove the glowing patina from Hovey’s bronze in the Indiana State House?

One might look to Jesus as the paragon of virtue but even he got angry and threw the moneychangers out of the temple. He, also, voiced his hope that the cup of his great travail might pass from him. On the other hand, apparently no one knows what Jesus looked like unless one believes the Shroud of Turin is a clue. I guess the Committee would not be able to find any statues of Jesus to modify.

It appears that history has not provided us with any perfect examples to honor. Maybe the Committee will have to suggest that all statues be modified by substituting feet of clay.

EDITORS FOOTNOTE: For more Gavel Gamut articles go to:

www.jamesmredwine.com

Vanderburgh County Current Warrants

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Vanderburgh County Current Warrants

Luke Messer Announces Pence, Kittle, Hallowell to Co-Chair Campaign; Rose to Chair Finance Committee, and Hiring of Veteran Campaign Manager

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Former Campaign Manager for Sen. Rand Paul to manage Messer’s U.S. Senate campaign
Indianapolis, IN – Less than two weeks since Rep. Luke Messer announced his campaign for U.S. Senate in front of hundreds of supporters in Morristown, the campaign is taking shape. The campaign will be co-chaired by Jim Kittle, Greg Pence and Jennifer Hallowell. Kittle previously served as the Chairman of the Indiana Republican Party and as the Finance Chairman for Vice President Mike Pence’s gubernatorial campaign. The Vice President’s brother, Greg Pence, previously served as Messer’s Finance Committee Chairman and has taken on additional leadership responsibilities. Hallowell is a former Executive Director of the Indiana Republican Party and has worked on several local, state and national Republican campaigns.
Greg Pence said, “We are growing this campaign because it is so important we send Luke Messer to the United States Senate. Luke is a proven conservative leader who can accomplish big things and that’s exactly what we need in the U.S. Senate.”
The new “I Like Luke” Finance Chairman is Central Indiana business leader Doug Rose. Rose has been active in many state and national campaigns and he will lead the finance committee which includes more than forty leaders from across the state. Additionally, Jenna Knepper, who worked on the campaigns for Senator Todd Young, Secretary of State Connie Lawson and former Indianapolis Mayor Greg Ballard, will serve as the Statewide Grassroots Chair for the campaign.
Messer also announced hiring Chasen Bullock as the Campaign Manager. Chasen was the Campaign Manager for Kentucky Senator Rand Paul, worked on the Rand Paul for President campaign and has managed multiple congressional races around the country.
Messer stated, “Our team is going to be focused on the things that matter. Hoosiers deserve a United States Senator who will vote with them 100% of the time. I’m running for Senate because I want to advance the Trump-Pence agenda to repeal and replace Obamacare, secure our border, cut back on overly burdensome regulations, and bring jobs and investments back to America.”
The Messer campaign also released its first video advertisement that features highlights from the August 12th campaign kick-off. The video will be promoted online in the coming days and can be accessed here.

Powell: Enforcement Plays Vital Role in Drug Crisis

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The Indiana Commission to Combat Drug Abuse heard today a law enforcement perspective on the opioid and drug crisis.

Commission Member David Powell, executive director of the Indiana Prosecuting Attorneys Council, discussed synthetic drug dangers, the impact of current drug penalties and he asked the commission to help halt marijuana legalization efforts.

Powell said synthetic versions of controlled substances avoid classification as an illicit drug because they have a slightly altered molecular structure, they avoid detection by traditional means and the possibilities of alteration of synthetic drugs are literally endless. “Illicit manufacturers can produce new drugs faster than they can be scheduled by authorities,” he said. Additionally, the medical costs of synthetic drug poisoning averages $25,600 per poisoning admission.

Despite the highly dangerous nature of synthetic drugs in Indiana, criminally, they are carved out for special penalty treatment and are treated as infractions and misdemeanor offenses. He urged that persons charged with synthetic drug possession or dealing be charged at the same level as any other Schedule I controlled substance.

Concerning current drug penalties in the state, Powell noted that commitments to the Indiana Department of Corrections by persons who have committed new crimes have been decreasing but parole and probation violations have increased in some cases. “Why are we not stopping this recidivism train that’s happening?” he asked.

In regards to marijuana legalization proposals that might come before the Indiana legislature during its 2018 session, Powell urged the commission to study lessons learned in Washington and Colorado from those states’ legalization experiments. Businesses and industry in states with legal marijuana are having trouble finding employees who can pass drug tests. Additionally, the overall number of traffic deaths related to marijuana has risen sharply in Colorado. Emergency-related poison control calls have also risen in Washington (68%) and Colorado (109%).

Powell noted that overall use of marijuana by youth, ages 12-17 is much greater in Washington and Colorado than the national average. “It is worrisome,” he said, “that 40% of American kids today think people drive better when they are high.”

Powell urged the commission to access the online publication “Lessons Learned After 4 Years of Marijuana Legalization” from the organization Smart Approaches to Marijuana.

Air Quality Forecast

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Air quality forecasts for Evansville and Vanderburgh County are provided as a public service.  They are best estimates of predicted pollution levels that can be used as a guide so people can modify their activities and reduce their exposure to air quality conditions that may affect their health.  The forecasts are routinely made available at least a day in advance, and are posted by 10:30 AM Evansville time on Monday (for Tuesday through Thursday) and Thursday (for Friday through Monday).  When atmospheric conditions are uncertain or favor pollution levels above the National Ambient Air Quality Standards, forecasts are made on a daily basis.

Ozone forecasts are available from mid-April through September 30th.  Fine particulate (PM2.5) forecasts are available year round.

Friday

August 25

 Saturday
August 26		 Sunday
August 27		 Monday
August 28		 Tuesday
August 29
Fine Particulate
(0-23 CST avg)
Air Quality Index		 Good Good Good Good NA*
Ozone
Air Quality Index		 Good Moderate Moderate Good NA*
Ozone
(peak 8-hr avg)
(expected)		 NA* NA* NA* NA* NA*

* Not Available and/or Conditions Uncertain.

Air Quality Action Days

Ozone Alerts are issued by the Evansville EPA when maximum ozone readings averaged over a period of eight hours are forecasted to reach 71 parts per billion (ppb), or unhealthy for sensitive groups on the USEPA Air Quality Index scale.

Particulate Alerts are issued by the Evansville EPA when PM2.5 readings averaged over the period of midnight to midnight are forecasted to reach 35 micrograms per meter cubed (µg/m3).

Current conditions of OZONE and FINE PARTICULATE MATTER are available in near real-time on the Indiana Department of Environment Management’s website.

National and regional maps of current conditions are available through USEPA AIRNow.

UE volleyball earns 3-1 win over Chicago State in opener

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Aces have strong start to opening weekend

Cathy Schreiber recorded 14 kills while hitting .393 as the University of Evansville volleyball team downed Chicago State, 3-1, in Friday’s season opener at the Leatherneck Invitational in Western Hall.

Schreiber fell just two shy of her career tally of 16 kills.  Rachel Tam and Rocio Fortuny had strong efforts, totaling 10 kills apiece.  A trio of newcomers made their marks in the victory.  Gabriela Dos Santos had 14 digs while freshman Cassie Brooke finished with 29 and fellow frosh Allana McInnis had 48 assists and a game-high six block assists.

“This was a good way to start the season.  We expected to be more nervous in the beginning, because of how many new people we have, as well as returners having new roles,” Aces head coach Manolo Concepcion said.  “But, the girls kept their composure and intensity. I was impressed with the set distribution and precision; it gave us good offensive opportunities.”

Dos Santos registered six digs and three kills as the Purple Aces took set one by a final tally of 25-21.  Rachel Tam had an early kill and service ace as UE jumped out to a 6-3 advantage.  The Cougars inched their way back into the contest, tying it up at 15-15.  From there, it was all UE as an Erlicia Griffith kill put the Aces up 22-18 before the hung on to take set one by a 25-21 final.

Through the entire duration of the second frame, neither squad led by more than two points. With the score tied at 18-18, the focus by both teams continued with each score being tied up to 28-28.  At that point, the Cougars were able to reel off the final two points to finish off with a 30-28 triumph to knot the match at 1-1.

Chicago State used the momentum from its win in the second game to open up the third with a 7-3 lead.  Cathy Schreiber was key to a 7-3 run by the Aces as her two kills helped to make it a 10-10 game.  Schreiber and Mildrelis Rodriguez kept up the intensity as two kills apiece helped Evansville open up a 19-13 advantage before finishing off with a 25-18 win.

Evansville scored the first four points in the fourth game before opening up an 8-1 lead.  Rachel Tam had a pair of kills in the early rally.  The Cougars were once again tenacious, chipping away at the deficit before tying it up late at 21-21.  The Aces scored two in a row on CSU errors before kills by Schreiber and Tam saw the Aces take a 25-23 decision while clinching the match.

On Saturday, the Aces will be back in action for a pair of matches.  They open the day at 10 a.m. versus Manhattan before taking on the host Leathernecks at 7 p.m.

“Tomorrow we have two more good opponents, where we have to be able to keep our emphasis on first and second contact, as well as playing systematic and disciplined,” Concepcion added.

ISP Museum Open Saturday, 8/26

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Museum will be open to the public from 12pm to 4pm

Looking for something to do this weekend? Head over to the Indiana State Police Museum, located on the east side of Indianapolis. The ISP Museum will be open from 12pm to 4pm and admission is free.

The museum houses several police cars from different decades, exhibits on crime scene investigation, radio communications, and the early 1930s, when gangsters like John Dillinger and Al Brady wreaked havoc on the nation. The Logo Store – a gift shop with Indiana State Police shirts, mugs, key chains, and more will also be open to the public.

Questions? Feel free to call the museum staff at (317) 899 8293 or email at ISPMuseum@isp.in.gov.

CVB August Mtg Notice

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The regular monthly meeting of the Evansville Convention & Visitors Bureau Board of Commissioners will convene on Monday , August 28th, 2017 at 3:30 p.m.

The meeting will be he’d at Hilton Double Tree, Cresent Room Evansville, IN

 

TWITTER ISLAND

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