ATTORNEY FOR APPELLANTS
Paul T. Cholis
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Randy J. Spitaels
Loren R. Sloat
SUPREME COURT OF INDIANA
KEVIN R. TROXEL and )
RICK L. TROXEL, )
Appellants (Petitioners Below), ) Indiana Supreme Court
) Cause No. 71S04-0008-CV-480
JOANNE K. TROXEL, ) Indiana Court of Appeals
Personal Representative of the Estate ) Cause No. 71A04-9904-CV-162
of Jack L. Troxel, Deceased, )
Appellee (Respondent Below). )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
Cause No. 71J01-9707-ES-343
ON PETITION TO TRANSFER
November 3, 2000
We hold that where a probate court erroneously admits a will to probate
after the expiration of the statute of limitations, the courts subsequent orders are
voidable and subject to attack via a timely will contest, but are not
void. Accordingly, any interested party with notice of the belated effort to
probate the will must object within the five-month period for a will contest.
Factual and Procedural Background
Jack Troxel and his second wife, Joanne, lived in a home on a
twenty-four acre parcel of property in rural St. Joseph County. After their
marriage, they purchased several adjoining parcels that were titled in both of their
names as joint tenants with right of survivorship. In 1981, Jack executed
a will leaving his entire estate to Joanne and naming her as the
personal representative of his estate. Jack died in 1992. His heirs-at-law
included his spouse Joanne and two sons from a previous marriage, Kevin and
Rick Troxel (hereinafter the Troxels).
The property on which Joanne resided was in fact held of record by
Jack alone, but Joanne assumed that Jack held no assets solely in his
name and therefore took no steps to probate his will or open an
estate. The three-year statutory period for probating Jacks will after his death
expired in 1995. It seems obvious that the Troxels also assumed the
property was Joannes after Jacks death. There is no indication in the
record that the Troxels took any action to assert their alleged ownership of
the twenty-four acre parcel. They did not seek to open Jacks estate
as intestate, which, if successful, would have made Kevin and Rick Troxel the
undisputed fee simple owners of the property subject to Joannes life estate in
one-third of the parcel. Ind. Code § 29-1-2-1(c) (1998). Nor did
they pay property taxes on the parcel, or take any action to remove
Joanne from the property, or collect rent from Joanne.
Joanne continued to live in the marital residence until December 1996, when her
home was destroyed by fire. Joanne filed a claim on her insurance
policy and sought a building permit to replace the residence. In the
course of that process she learned for the first time that the twenty-four
acre parcel was titled in Jacks name only.
On July 22, 1997, in order to have the title to the parcel
transferred to her, Joanne filed her Petition for Probate of Will and Issuance
of Letters. One week later, the St. Joseph Probate Court admitted Jacks
will to probate. Joannes petition acknowledged Indiana Code section 29-1-7-15.1(d), which states
that a will shall not be probated unless the process is initiated within
three years of the decedents death. Despite the statute, the probate court
admitted the will to probate and subsequently followed standard procedure, including publishing notices
A few weeks after the will was admitted to probate, on or about
August 14, 1997, Kevin telephoned one of the attorneys representing the estate and
asked about the administration of Jacks estate. He was sent a copy
of the will on that day. Ten months later, on June 19,
1998, the probate court closed the estate and issued an Order on Final
Account and Decree of Final Distribution and Discharge of Personal Representative. Pursuant
to the terms of the will, all assets in the estate were transferred
to Joanne. On August 7, 1998, the Troxels petitioned the probate court
to reopen the estate and revoke the probate of the will on the
ground that it was erroneously admitted to probate more than three years after
Jacks death. Joanne responded with a motion to dismiss alleging that the
petition failed to state a claim upon which relief could be granted under
Indiana Trial Rule 12(B)(6).
The probate court issued a Memorandum of Law finding that, although it did
not have the statutory authority to admit Jacks will to probate more than
three years after his death, its decision was not void, but merely voidable.
The probate court ruled that the probate of Jacks will could have
been defeated by a timely will contest, but that the Troxels petition to
reopen the estate, filed more than five months after the will was admitted
to probate, was an untimely will contest barred by Indiana Code section 29-1-7-17.
Accordingly, the court granted Joannes motion to dismiss.
After a motion to correct error was denied, the Troxels appealed. The
Court of Appeals reversed the order dismissing the Troxels petition, holding that the
probate order was barred as a matter of law when it was entered,
and the petition to revoke that order should have been granted.
re Estate of Troxel, 720 N.E.2d 731, 736 (Ind. Ct. App. 1999).
The probate courts decision to disallow the Troxels petition to reopen the estate
was based on Joannes motion to dismiss under Indiana Trial Rule 12(B)(6).
However, Joanne submitted two affidavits to the probate court in support of her
motion to dismiss. By the terms of Rule 12(B)(6), where affidavits are
presented to the trial court in support of a motion to dismiss for
failure to state a claim, the trial court is to treat the motion
as a motion under Rule 56 for summary judgment. In this case,
no evidence was formally designated in the trial court because the motion was
filed as a Rule 12 motion to dismiss, not as a Rule 56
motion for summary judgment. If a Rule 12 motion is accompanied by
affidavits or other appropriate factual matters, the matters presented are treated as designated
by the party. Ind. Trial Rule 12(C). The Troxels introduced no
evidence to contest Joannes assertions of fact. Shortly after Joannes motion was
filed, the Troxels acknowledged that her affidavits raised evidentiary issues and expressed a
desire to respond. Although the trial court did not rule until three
months after Joannes motion, the Troxels never filed affidavits or any other evidence
disputing Joannes factual assertions. Therefore, the uncontroverted evidence before the trial court
consisted of Joannes two affidavits.
Standard of Review
On appeal, the standard of review for a summary judgment motion is the
same as that used in the trial court: summary judgment is appropriate only
where the evidence shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705
N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences drawn from
those facts are construed in favor of the non-moving party. Shell Oil,
705 N.E.2d at 983-84. The review of a summary judgment motion is
limited to those materials designated to the trial court. Ind. Trial Rule
56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993).
I. Admission of Will to Probate
The Troxels make two interrelated arguments supporting their contention that the trial court
erred when it denied their petition to reopen Jacks estate and revoke the
order of probate. Jacks will was offered into probate more than three
years after his death, in violation of Indiana Code Section 29-1-7-15.1(d). For
that reason, the Troxels first argue that the probate courts orders to admit
the will to probate and close the estate were void ab initio.
The Court of Appeals agreed with this reasoning. Troxel, 720 N.E.2d at
We agree with the Court of Appeals that the language of Indiana Code
section 29-1-7-15.1(d) clearly and unambiguously bars the admission of wills to probate more
than three years after death. However, we do not agree that where
a probate court admits a will to probate in violation of the statute,
the order is void ab initio. Some form of the statute of
limitations for the probate of wills has been a part of Indiana state
and territorial laws since 1814. 1A
Henrys Probate Law & Practice (1999).
However, this is the first case in which the Indiana appellate courts
have been confronted with the question of the proper remedy when a court
erroneously admits a will to probate after the statutory time limit.
The Troxels rely on a 1968 opinion from the Court of Appeals to
strengthen their contention that the probate courts order admitting Jacks will to probate
was void ab initio.
In re Estate of Cameron involved a holographic,
unsigned, and unwitnessed codicil that the trial court had admitted to probate even
though it did not meet the statutory requirements of a testamentary document.
142 Ind. App. 645, 236 N.E.2d 626 (1968). An opponent of the
codicil filed objections to a nunc pro tunc order purporting to admit the
codicil as of a date twenty months earlier.
The Court of Appeals
excused the delay, following a California ruling that if an order admitting a
will to probate is void on its face, it may be collaterally attacked
at any time. The defect in Cameron was not in the jurisdiction
of the court but in the nature of the document represented to be
a codicil. On its face, the codicil did not constitute a testamentary
document and therefore was a nullity or void as a purported disposition of
the decedents assets. Cameron, 142 Ind. App. at 652, 236 N.E.2d at
Assuming without deciding that
Cameron was correctly decided, it is not controlling here.
The Troxels argument assumes that on September 26, 1995, three years after
Jacks death, his will became patently defective and therefore the order admitting it
to probate was void. We do not agree that the expiration of
a statute of limitations creates a patent defect in an otherwise valid will.
Statutory requirements regarding the form and content of wills and related instruments
are designed to ensure that documents admitted to probate are valid and accurately
represent the wishes of the decedent. Unlike the unsigned codicil in Cameron,
Jacks will has no defect that casts doubt upon its testamentary validity and
there is no dispute that the will represented Jacks wishes regarding the distribution
of his property. Rather, the defect the Troxels assert is in the
nature of a statute of limitations bar to probating the will. Statutes
of limitations are affirmative defenses. Ind. Trial Rule 8(C). As such,
they are waivable. Id. As heirs-at-law, the Troxels were clearly interested
parties entitled to bring a will contest. They had a valid defense
to the probate of Jacks will, but were under a time limitation of
their own. Indiana Code section 19-1-7-17 requires objections to be filed within
five months after a will is admitted to probate. This was not
done and had the effect of waiving the statute of limitations. The
purpose of this limitation, like the three-year period for probating a will, is
to give finality to the decedents affairs. Even if the initial probate
was untimely, the matter can be put to rest only if there is
an end to the time for objections to the untimely probate.
Second, the Troxels argue that an Indiana court has jurisdiction to admit to
probate only those wills that comply with all relevant statutory requirements. By
phrasing the claim in jurisdictional terms, the Troxels contend that the courts subsequent
orders were void ab initio. Jurisdiction is comprised of three elements:
(1) jurisdiction of the subject matter; (2) jurisdiction of the person;
and (3) jurisdiction of the particular case.
Browning v. Walters, 620 N.E.2d
28, 31 (Ind. Ct. App. 1993). The question of subject matter jurisdiction
entails a determination of whether a court has jurisdiction over the general class
of actions to which a particular case belongs. DuShane v. DuShane, 486
N.E.2d 1106, 1107 (Ind. Ct. App. 1985). When a court lacks jurisdiction
of the subject matter, its actions are void ab initio and have no
effect whatsoever. Such judgments are incapable of confirmation or ratification. Trook
v. Lafayette Bank & Trust Co., 581 N.E.2d 941, 944 (Ind. Ct. App.
1991), trans. denied. Lack of personal jurisdiction is also fatal and, in
its absence, an order can be attacked at any time. Stidham v.
Whelchel, 698 N.E.2d 1152, 1154-56 (Ind. 1998).
The Troxels acknowledge that the St. Joseph Probate Court has subject matter jurisdiction
over probate. There is no challenge to jurisdiction over the person of
any of the parties. However, because probate law in Indiana is purely
statutory, the Troxels contend that orders issued by a probate court in the
absence of jurisdiction over a particular case are void ab initio. This
argument leads to two questions: (1) did the expiration of the statute of
limitations end the probate courts jurisdiction over the probate of Jacks will, and
(2) if so, did that render the courts subsequent orders void or voidable?
The Troxels rely on
Cameron and Overpeck v. Dowd, 173 Ind. App. 610,
364 N.E.2d 1043 (1977), for the proposition that the probate court lacked jurisdiction
over Jacks will. We think neither case supports their argument. In
Cameron, the Court of Appeals did not base its holding on the probate
courts lack of jurisdiction. Rather, it found that the codicil was a
non-testamentary document and therefore a void attempt to amend the will. Cameron,
142 Ind. App. at 645, 236 N.E.2d at 626.
Overpeck is a complicated case in which a series of estates had to
be opened and settled before the owners of a particular parcel of land
could be ascertained. As the probate court worked through a web of
potential beneficiaries, it granted letters of administration for the estates of three sisters.
Evidence later proved that none of the sisters had ever been residents
of Indiana, let alone the county in which probate was opened. Nor
did any of the sisters own any assets in Indiana that would provide
a basis for an ancillary administration. See Ind. Code §§ 29-2-1-1 to
12 (1998). In simple terms, title to the parcel of land in
question had never vested in any of the sisters, and they had no
assets in Indiana. The Court of Appeals held that an Indiana probate
court lacks jurisdiction to commence estate proceedings where the decedent is neither a
domicile of Indiana nor owns assets in Indiana. As a result, the
orders regarding the three estates were void. The Court of Appeals did
not specify whether the probate court lacked subject matter jurisdiction, personal jurisdiction, or
jurisdiction over the particular case. However, it is clear that the probate
court had neither personal jurisdiction over the three sisters nor in rem jurisdiction
over their estates. Therefore, neither Cameron nor Overpeck supports the proposition that
the probate courts order admitting Jacks will was void for lack of jurisdiction.
Indiana appellate courts have consistently held that a judgment rendered by a court
without jurisdiction to hear that particular case is not void, but merely voidable.
If not attacked in a timely manner, the jurisdictional defect is waived.
Trook, 581 N.E.2d at 944; DuShane, 486 N.E.2d at 1107.
The Troxels argue that this general principle should not be applied to this
case because probate law is purely statutory. This does not seem to
be a critical difference. But in any event, Indiana appellate courts have
applied this principle to claims that arise purely from statute. Estate of
Goodwin v. Goodwin, 721 N.E.2d 886, 890 (Ind. Ct. App. 1999) (divorce courts
nunc pro tunc dissolution order nine years after divorce was finalized was found
to be voidable); Chapman v. Skinner, 466 N.E.2d 777, 779 (Ind. Ct. App.
1984) (court that had issued divorce judgment had continuing jurisdiction over child custody
decree; therefore different circuit court had no jurisdiction to entertain grandparents' petition for
visitation rights.) We see no reason to depart from this precedent and
decline to carve out an exception to this rule for probate law.
We hold that the orders admitting Jacks will to probate and closing the
estate were voidable because they violated Indiana Code section 29-1-7-15.1(d). The proper
remedy to correct the probate courts order was the timely filing of a
will contest. Whether the Troxels availed themselves of this remedy is discussed
II. Will Contest
Under the Indiana Code section 29-1-7-17:
Any interested person may contest the validity of any will in the court
having jurisdiction over the probate of the will within five (5) months after
the date of the order admitting the will to probate by filing in
the court the persons allegations in writing verified by affidavit, setting forth:
(1) the unsoundness of mind of the testator;
(2) the undue execution of the will;
(3) that the will was executed under duress or was obtained by fraud;
(4) any other valid objection to the wills validity or the probate of
The Troxels argue that their petition to reopen the estate of Jack Troxel,
filed more than twelve months after the will was admitted to probate, was
erroneously treated as a will contest by the probate court. Essentially, they
make two alternative arguments. First, relying once more on
Cameron, they argue
that Jacks will had a patent defect and was therefore subject to collateral
attack at any time. This argument relies on the idea that the
probate courts orders were void ab initio. We have already rejected that
III. Due Process Claim
Second, the Troxels contend that their petition was not a will contest governed
by section 17. Their petition was not a will contest, argue the
Troxels, because it was an attempt to force the trial court to recognize
a lack of jurisdiction over the will under Indiana Code section 19-1-7-15.1(d).
We think this a distinction without a difference.
The language of the statute is clear and unambiguous: will contests may attack
either the validity of a will or the admission of a will to
probate. Certainly the Troxels objection to the admission of a will to
probate in violation of the statute of limitations falls under the fourth provision
of the statute as an attempt to assert a valid objection to the
probate of the will.
The Troxels assert that, notwithstanding the language of the statute, Indiana appellate courts
have judicially limited a will contest action to an attack upon the validity
of a will on the grounds of (1) lack of testamentary capacity or
(2) undue execution.
Jarrett v. Ellis, 193 Ind. 687, 687, 141 N.E.
627, 628 (1923); Kenworthy v. Williams, 5 Ind. 375, 377 (1854); In
re Estate of Parlock, 486 N.E.2d 567, 569 (Ind. Ct. App. 1985).
These cases do not limit the statutory definition of a will contest.
They simply summarize the substantive grounds for an attack upon the validity of
a will where the admission to probate is procedurally valid. Indeed, several
appellate decisions state that any attack on the validity of the probate of
a will is subject to the requirements of section 17. Fitch v.
Maesch, 690 N.E.2d 350, 352 (Ind. Ct. App. 1998); In re Estate of
Niemiec, 435 N.E.2d 999, 1001 (Ind. Ct. App. 1982) (Actions to contest the
validity of a will or to resist a probate of a will must
be filed within five months after the will has been offered for probate.).
In sum, the probate court correctly interpreted the Troxels petition to reopen the
estate as a will contest attacking the probate of Jacks will. The
Indiana Code provides that interested parties have five months to file a will
contest after a will has been admitted to probate. Ind. Code §
29-1-7-17 (1998). The Troxels did not file their petition until August 7,
1998, over twelve months after the will had been admitted to probate and
almost two months after the estate was closed. This clearly exceeds the
statutory time limit for will contests and the probate court correctly rejected their
petition as untimely.
The Troxels contend that the probate courts dismissal of their petition imposes a
burden on heirs-at-law to be ever vigilant to determine if a will has
been admitted to probate so that they might object in a timely fashion.
We do not agree. In the petition for the probate of
a will, the personal representative must inform the court only of the name
and residence of each of the persons named in the will so that
the court may give them notice of probate.
Id. § 29-1-7-5(2) (1998).
But no notice is required to be given to those who would
be intestate heirs if there is no will.
Thus, if Jacks will
had been probated in a timely manner, the Troxels, as heirs-at-law not named
in the will, would have no statutory right to notice. The statute
puts the burden on interested parties to be on alert for three years
to a potentially disinheriting probate. If a will is probated after that
time, as here, notice by publication may well be inadequate to put interested
parties on notice that their rights may be affected. Thus, we agree
that the Troxels might have had a valid point if they had been
unaware of Joannes effort to probate the will.
This issue is not presented here, however. The Troxels had actual notice
of the probate and allowed the five months to expire. They could
have, but did not, invoke the three-years-from-date-of-death provision to bar probate. Not
having done so they waived that objection. We leave for another day
whether the passing of five months bars an interested person who has no
actual notice of an untimely effort to probate a will. That day
may never arrive, given that it took almost two centuries for the issue
presented by the Troxels to arise.
Finally, the Troxels claim that because Jacks will was not probated within the
three-year statute of limitations set out in Indiana Code section 29-1-7-15.1(d), ownership of
the twenty-four acre parcel passed to them via the Indiana intestacy statute, Indiana
Code section 29-1-2-1. In other words, they argue that at the time
of Jacks death, or, alternatively, when the three-year statute of limitations expired, the
title to the property became vested in the Troxels as fee simple owners
subject to Joannes life estate in one-third of the parcel. Therefore, the
Troxels claim that when the probate court erroneously admitted the will to probate
and allowed Joanne to take title to the parcel, it deprived the Troxels
of their property rights without due process of law. At the very
least, the Troxels argue, due process required that the probate court directly notify
them of the probate proceedings so that they could have an opportunity to
object. We agree that this too would raise a substantial issue if
it were presented. But the Troxels had actual notice of the proceedings.
Any property rights they had could have been lost by default in
a legal proceeding, and failure to present a timely will contest had that
result. Moreover, despite having submitted two briefs to the probate court, the
Troxels failed to raise the due process claim until their motion to correct
error. A party may not raise an issue for the first time
in a motion to correct error or on appeal. Evans v. Tuttle
by Tuttle, 645 N.E.2d 1119, 1121 (Ind. Ct. App. 1995).
The judgment of the probate court is affirmed.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
RUCKER, J., not participating.
Although the Court of Appeals opinion in
Cameron includes few facts, a
review of the record in that case reveals that the unsigned codicil was
admitted to probate, along with the properly executed will of Alice Cameron, on
May 17, 1965. The executor of the estate noticed two years later
that the codicil had not been properly recorded by the court and filed
a motion to correct errors in 1967. In response, the probate court
issued the nunc pro tunc order at issue in the case. The
executor testified that George Coggeshall, the primariy beneficiary under the will and the
appellant in Cameron, read the codicil before it was filed in May 1965.
For the view that Indianas probate law is insufficiently protective of potentially
disinherited heirs, see Kent A. Jeffirs,
Always the last to know: No notice
is good notice to disinherited family members who may challenge the validity of
a will, 40 Res Gestae, Oct. 1996, at 27-30.
The Court of Appeals did not reach this issue because it found
in the Troxels favor on other grounds.