October 14, 2020

Sarah Jenkins Discusses Indiana Court of Appeals Ruling on Dead Man’s Statute

In the article “COA ruling gives Dead Man’s Statute longer reach,” The Indiana Lawyer turned to business litigation partner Sarah Jenkins for insight on a recent appellate decision involving Indiana’s Dead Man’s Statute.

The story involved a unanimous opinion by the Indiana Court of Appeals affirming a trial court’s decision in Bergal v. Bergal, a case involving a widow and her stepson over approximately $8 million in assets held in a trust. According to the publication, the stepson had been disinherited through a diversion of the assets, which led to litigation and the stepson convincing the Porter County Superior Court that the Dead Man’s Statute prohibited the widow from testifying about the statements her late husband had made regarding the trust.

Jenkins commented on the Court of Appeals ruling, telling the publication that “This is going to open the door quite a bit. We’re expanding the Dead Man’s Statute when the trend in other jurisdictions has been to do away with it.”

The Indiana Lawyer noted that the expansion is also creating uncertainty, and probate attorneys are talking about the decision and wondering when the Dead Man’s Statute will apply.

Jenkins equated the Court of Appeals ruling with creating a new test. Now the courts are going to have to determine whether a trust “is so central to the overall goal of the estate plan” that the Dead Man’s Statute will be able to be invoked.

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