September 30, 2011
Authored by: Luke Lantta
In Avery v. Avery, the Indiana Supreme Court resolved what had apparently been an open question under Indiana law when it ruled that filing of an answer as required by Indiana Trial Rule 7 is required in a will contest action.After Mary Louise Avery died, her daughter, Trina Avery, opened a supervised estate and received appointment as the personal representative. Two of Mary Louise’s sons, Rod Avery and Marshall Avery, filed a petition to remove their sister as personal representative and probate a will that named Rod as personal representative. That will was admitted to probate.
Trina filed a separate action contesting the will and asserting that it was the product of undue influence, fraud, and duress, and that Mary Louise had executed a subsequent superseding will. Notice of Trina’s lawsuit was provided to Rod and Marshall, but they did not file an answer. So, Trina moved for default judgment. Rod and Marshall filed a motion to dismiss the motion for default judgment arguing that an answer was not required in a will contest action. The trial court denied the motion to dismiss and entered a default judgment for Trina.
The Indiana Supreme Court agreed with the trial court. Although some older Indiana cases suggested that an answer in a will contest case was not necessary, adoption of the Indiana Rules of Trial Procedure changed that. Because a suit brought to contest the validity of a will is not exempted from the trial rules, then an answer is required. Thus, under Indiana law, by failing to file an answer or other response in a will contest, a defendant may be subject to a default judgment.