September 10, 2019

Indiana Court of Appeals Saves Will Contest From “Draconian” Dismissal

When a will contest was filed in the wrong court, the trial court dismissed it with prejudice for failure to state a claim. However, the Indiana Court of Appeals reversed and reinstated the complaint, reasoning that it would be draconian to dismiss the complaint for an easily remedied procedural flaw.


On September 6, 2019, the Indiana Court of Appeals decided Witham v. Steffan. The case involved a man who died and left behind a will. The personal representative probated the decedent’s will and other testamentary documents in the county superior court. A short time later – within the three-month period to contest a will – the decedent’s cousin filed a will contest and a petition to docket the trust in the same county, but in the circuit court.

The personal representative filed a motion to dismiss under Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted. The personal representative argued that because the will contest was erroneously filed in the wrong court, the cousin was not entitled to relief under the will contest statute. The circuit court transferred the action to the superior court to resolve the matter. The superior court granted the motion to dismiss with prejudice for failure to file in the proper court.

The Indiana Court of Appeals’s Analysis

The Indiana Court of Appeals, in short shrift, reversed the trial court’s dismissal. The Court of Appeals acknowledged that the will contest statute, Ind. Code § 29-1-7-17, requires that a will contest be brought in the court that has jurisdiction over probate of the will. But this requirement, the Court of Appeals said, is entirely procedural and is better the subject of a motion to dismiss under Trial Rule 12(B)(3) for incorrect venue. These motions, the Court of Appeals continued, are subject to Trial Rule 75(B)(1), which prohibits dismissal and, instead, requires trial courts to transfer the action to the proper court. The Indiana Court of Appeals noted that neither the cousin, nor the personal representative, nor the superior court raised the improper venue argument. Accordingly, the cousin normally would have been deemed to have waived the argument. In this case, however, the Court of Appeals said that dismissing the will contest under Trial Rule 12(B)(6), when it would have been saved if challenged properly under Trial Rule 12(B)(3), would be draconian.

Going Forward

The published opinion of the Indiana Court of Appeals not only reminds litigants to file their will contests in the court with jurisdiction over the will’s probate, but it more broadly teaches that procedural challenges should not be cloaked as motions to dismiss for failure to state a claim. A litigant’s right to a determination on the merits will be not undermined by such procedural tactics.

Estate administration and litigation are constantly evolving areas of law. Questions on estate administration and disputes should be directed to legal counsel.

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