MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jan 24 2019, 9:10 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Katherine A. Harman
Lawrenceburg, Indiana                                    Jared S. Sunday
                                                         Mallor Grodner LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of The Supervised                          January 24, 2019
Estate of Gary L. Steinmetz,                             Court of Appeals Case No.
deceased, With Personal                                  18A-ES-1188
Representative:                                          Appeal from the Dearborn Circuit
                                                         Court
Ruth Steinmetz,                                          The Honorable James Humphrey,
                                                         Judge
Appellant-Petitioner,
                                                         Trial Court Cause No.
        v.                                               15C01-1611-ES-35


Daryl Steinmetz,
Appellee-Respondent.



Robb, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019            Page 1 of 16
                                Case Summary and Issue
[1]   After Ruth Steinmetz’s son, Gary, died, Ruth was appointed personal

      representative of Gary’s intestate estate. Several weeks after the estate was

      opened, Ruth filed a petition to probate a handwritten will she had discovered.

      The trial court denied her petition. Several months after the denial, Ruth filed a

      motion to set aside the trial court’s denial, claiming she had newly discovered

      evidence relevant to whether the handwritten will should be admitted to

      probate. The trial court denied the motion to set aside. In this interlocutory

      appeal, Ruth raises one issue: whether the trial court’s failure to set aside its

      earlier ruling denying admission of the document to probate was contrary to

      law. Concluding the trial court’s decision on the petition to admit a document

      to probate was correct and therefore, the trial court’s subsequent decision to not

      set aside that ruling was also correct, we affirm.



                            Facts and Procedural History
[2]   Gary Steinmetz died unexpectedly on October 30, 2016. At the time of his

      death, he was living with his mother, Ruth. On November 7, 2016, Ruth

      opened an estate alleging Gary died intestate and asking to be appointed

      personal representative. The petition recognized the following people as Gary’s

      heirs: Ruth; Daryl Steinmetz, Terrance Steinmetz, and Donna Johnson, Gary’s

      siblings; and Lydia Trabel, daughter of Gary’s deceased sister Malia Steinmetz.

      The court appointed Ruth personal representative of Gary’s supervised estate

      the same day.

      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 2 of 16
[3]   On December 8, 2016, Daryl filed a petition seeking to remove Ruth as

      personal representative because Ruth was allegedly dissipating estate assets.

      One day after Daryl filed his petition, Ruth filed a petition to probate a will she

      had found while cleaning Gary’s house. Attached to Ruth’s petition was a

      handwritten document signed by Gary and two witnesses, dated February 21,

      2015, and naming Ruth as his sole beneficiary:




      Volume of Exhibits at 16. Gary Kuebel, Gary’s friend, and Eleanor Hartsock,

      Ruth’s neighbor, were present when Gary executed the document and they

      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 3 of 16
      signed as witnesses. Also attached to Ruth’s petition was a “Proof of Will”

      signed by Kuebel under oath attesting that Gary signified that the document

      was his will, executed it in the presence of both himself and Hartsock, and that

      he and Hartsock then signed it in the presence of each other.


[4]   The trial court held a hearing on Ruth’s petition. Kuebel testified that he,

      Hartsock, and Gary were all at Ruth’s house on February 21, 2015, and Gary

      declared the document to be his last will and testament before signing. He

      reiterated that Gary “intended it to be his Last Will” several times. Transcript,

      Volume I at 14; see also id. at 24, 25. He also testified that the document

      “looked like the same document as what we presented today[,]” including

      question marks, arrows, scratched out items, and marginal notations. Id. at 16-

      17. Hartsock testified that Gary asked her if she would “be a witness that he

      did a drafting of a Will[.]” Id. at 31. However, she later testified that Gary

      declared the document to be “his wishes[,]” id. at 34, 37, and that she “honestly

      can’t recall” if he said it was his Last Will and Testament, id. at 37. Kuebel and

      Hartsock both testified that Gary told them that day that he was going to have

      an attorney prepare a will for him. In April 2015, Gary had an attorney draft a

      will that placed all his assets in trust for Ruth during her lifetime with a

      remainder interest to his niece, Lydia. Gary never signed this document,

      however.


[5]   On March 8, 2017, the trial court entered its order denying Ruth’s petition to

      probate the purported will, finding, in part:



      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 4 of 16
              1. The Court finds that the document itself contains the
              purported signature of Gary Steinmetz and was witnessed by two
              (2) witnesses. The document also contains question marks,
              arrows and certain areas where provisions have been marked out
              at some time. The Court is unable to determine when alterations
              were made.


              2. [Ruth’s] witness, Eleanor [Hartsock], was one of the
              subscribing witnesses. . . . Ms. [Hartsock] further stated that Gary
              Steinmetz indicated that he was in the process of contacting an
              Attorney to prepare his Will. Ms. [Hartsock] also testified that
              [Gary] did not state that this document was his Will; [Gary]
              stated that this document expressed his wishes.


              3. The Court also considers testimony of Donna Johnson, sister
              of [Gary] and daughter of [Ruth]. The Court considers Mrs.
              Johnson’s testimony that shortly after [Gary’s] death that [Ruth]
              repeatedly stated that [Gary] had no Will. The Court also
              considers testimony from Mrs. Johnson that [Ruth] offered to
              pay her funds to convince other family members to allow her to
              inherit all of [Gary’s] property. . . .


              4. The Court also considers that a Will was drafted for [Gary] by
              legal counsel, but that this Will was never executed.


      Appellant’s Appendix, Volume Two at 14-15 (citations omitted). The trial

      court concluded “that insufficient evidence has been presented to show that

      [Gary] intended this document to be his Last Will and Testament.” Id. at 14.


[6]   Daryl then filed a renewed request to remove Ruth as personal representative.

      Ruth immediately filed a response to Daryl’s petition and an inventory and

      appraisal valuing the estate at $250,340. The trial court scheduled a hearing,


      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 5 of 16
      but it was not held because Ruth initiated an appeal of the trial court’s March 8

      order. This court dismissed the appeal because the March 8 order was neither a

      final judgment nor an interlocutory order appealable of right. See Estate of

      Steinmetz v. Steinmetz, 2017 WL 3882057 at *2 (Ind. Ct. App. Sept. 6, 2017). 1


[7]   On October 24, 2017, Ruth filed a motion to set aside the March 2017 order

      denying probate of the February 2015 document, alleging that on September 6,

      2017, but “after the Appellate Court decision[,]” she discovered a notarized

      “Last Will and Testament” signed by Gary on December 15, 2010. Appellant’s

      App., Vol. Two at 51.2 This document states:


               I Gary Steinmetz, being of sound mind and will, do hereby grant
               my mother, Ruth A. Steinmetz, my life assets in their entirety,
               my farm land, out buildings and all contents, my home and all
               contents, vehicles, all monetary assets: savings, checking, 401K
               and any other stock benefits due to me, as of this day,
               12/15/2010.


      Id. at 53. Ruth claimed this newly discovered evidence supported her claim that

      Gary’s “intention was to leave everything to his mother and . . . that this

      document will bolster [the February 2015 document].” Tr., Vol. I at 82. Daryl




      1
       While the 2017 appeal was pending, a successor personal representative was appointed by agreement of the
      parties.
      2
        At the hearing on the motion to set aside, Ruth testified that she found the document in August when she
      bought a new car and opened her file box to retrieve the title to the car she was trading in. She testified the
      document was in a file labeled “Gary’s business.” Tr., Vol. I at 87. Her motion to set aside specifically
      stated she found the December document on September 6. Regardless of the actual date Ruth found the
      document, she testified that when she found it, she already knew her appeal had been dismissed.

      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019                     Page 6 of 16
      filed a response and the trial court held a hearing on the motion. Following the

      hearing, the trial court issued an order on March 19, 2018, denying Ruth’s

      motion to set aside because the December 2010 document “provides insufficient

      evidence for the Court to reverse its ruling” rejecting the February 2015

      document. Appealed Order at 2. Ruth sought and was granted certification of

      the order for appellate review and this court accepted jurisdiction. Ruth now

      appeals the trial court’s denial of her motion to set aside its order denying

      admission of the February 2015 document to probate.



                                 Discussion and Decision
                                     I. Standard of Review
[8]   Ruth filed a “motion to set aside” the March 2017 order alleging newly

      discovered evidence relevant to the determination of whether to admit the

      February 2015 document to probate. Whether we consider this a motion to

      reconsider, see Ind. Trial Rule 54(B) (providing that “an order . . . is subject to

      revision at any time before the entry of [final] judgment”), or a motion for relief

      from judgment, see T.R. 60(B)(2) (providing a “court may relieve a party . . .

      from a judgment . . . for . . . newly discovered evidence”), the standard of

      review is the same: we review the trial court’s decision for an abuse of

      discretion. See In re Estate of Hammar, 847 N.E.2d 960, 962 (Ind. 2006) (“A trial

      court’s control and discretion to change its own rulings is firmly established in

      common law, and we will review a trial court’s reconsideration of its prior

      rulings for abuse of discretion.”); Hill v. Ramey, 744 N.E.2d 509, 513 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 7 of 16
       App. 2001) (“Our review of a trial court’s decision on a motion for relief from

       judgment pursuant to Trial Rule 60(B) is limited to determining whether the

       trial court abused its discretion.”).3 Thus, we will reverse the trial court’s ruling

       only if it goes against the logic and effect of the facts or the trial court has

       misinterpreted the law. Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind. Ct. App.

       2002), trans. denied. Further, we will not reweigh the evidence, and we give the

       trial court’s order substantial deference. Id.


                           II. Motion to Admit Will to Probate
[9]    The crux of Ruth’s argument is that the trial court erred in failing to admit the

       February 2015 document to probate as a valid will and then compounded the

       error by failing to reconsider and correct this ruling when the December 2010

       document was later offered as further proof of testamentary intent. Therefore,

       in deciding whether the trial court abused its discretion in denying the motion

       to set aside, we must also look to the standard for determining whether Gary

       executed a valid will in February 2015 that should have been admitted to

       probate on the first request.


[10]   The parties agree that Daryl, as the opponent of the document, had the burden

       of proving that the February 2015 document was not a valid will. See Brief of




       3
         Historically, our courts had held that Trial Rule 60(B) motions applied only to final judgments. In Mitchell
       v. 10th and The Bypass, LLC, 3 N.E.3d 967, 973-74 (Ind. 2014), our supreme court noted that a 2009
       amendment to Rule 60 deleted the word “final” from the rule such that it no longer precludes relief from an
       interlocutory order.

       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019                   Page 8 of 16
       Appellant at 14; Appellee’s Brief at 12; see also Ind. Code § 29-1-7-20. The trial

       court entered findings of fact and conclusions of law sua sponte and we are

       therefore limited in our review to determining whether the evidence supports

       the findings and whether those findings support the judgment. Fowler v. Perry,

       830 N.E.2d 97, 102 (Ind. Ct. App. 2005). The findings and the judgment will

       be set aside only if they are clearly erroneous. Id. We define the clearly

       erroneous standard based upon whether the party is appealing a negative

       judgment or an adverse judgment. Id. Because the trial court entered an order

       against Ruth, who was defending the validity of the will, Ruth is appealing

       from an adverse judgment. See Garling v. Ind. Dep’t of Nat. Res., 766 N.E.2d 409,

       411 (Ind. Ct. App. 2002), trans. denied. Therefore, “we will hold the findings

       clearly erroneous if they are not supported by substantial evidence of probative

       value. Even if the supporting evidence is substantial, we will reverse the

       judgment if we are left with a definite and firm conviction a mistake has been

       made.” Id. (citations omitted).


[11]   The trial court denied probate of the February 2015 document for several

       reasons: 1) inadequate publication by Gary, 2) the appearance of the

       document, 3) Ruth’s conduct after Gary’s death, and 4) the existence of a

       subsequent unsigned will. The trial court concluded the December 2010

       document was “unpersuasive” as an additional ground for probate of the

       February 2015 document because it does not comply with requirements to be a

       valid will on its own and was too remote in time from the February 2015




       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 9 of 16
       document. App. of Appellant, Vol. Two at 11. We will address each reason in

       turn.


                                              A. Publication
[12]   “Publication of a will is the testator’s act of making it known in the presence of

       witnesses that the instrument to be signed is the testator’s last will and

       testament.” Scribner v. Gibbs, 953 N.E.2d 475, 479 (Ind. Ct. App. 2011).

       Publication ensures the witnesses are aware that the testator knows he or she is

       about to execute a will in order to lessen the likelihood of fraud. Id. at 479-80.

       Indiana Code section 29-1-5-3(b) sets forth the requirements for a valid will:


               (1) The testator, in the presence of two (2) or more attesting
               witnesses, shall signify to the witnesses that the instrument is the
               testator’s will and either:


                       (A) sign the will:
                       (B) acknowledge the testator’s signature already made; or
                       (C) at the testator’s direction and in the testator’s presence
                       have someone else sign the testator’s name.


               (2) The attesting witnesses must sign in the presence of the
               testator and each other.


       “This section shall be construed in favor of effectuating the testator’s intent to

       make a valid will.” Ind. Code § 29-1-5-3(e).




       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 10 of 16
[13]   There is no question that Gary signed the February 2015 document in the

       presence of Kuebel and Hartsock4 and there is no question that Kuebel and

       Hartsock signed the document in the presence of Gary and each other. The

       only question is whether Gary declared the document to be his will before

       signing. Kuebel signed under oath a proof of will attesting that Gary “signified

       that such instrument was his Last Will and Testament[.]” App. of Appellant,

       Vol. Two at 34. He also testified repeatedly that Gary declared the document

       to be his last will and testament before signing it on February 21, 2015.

       Hartsock was less definitive, testifying that, “[w]hen I arrived, [Gary] asked me

       if I would be a witness that he did a drafting of a Will and I said I would.” Tr.,

       Vol. I at 31. But she also testified that she recalled Gary to “declare it his

       wishes[,]” id. at 34, that she did not know it was his last will and testament, that

       Gary told her he was in the process of contacting an attorney to draft a will, and

       that her “assumption is that what [she] signed was [Gary’s] wishes and he was

       working on a document with a Lawyer.” Id. at 37.


[14]   Although Kuebel executed a proof of will and testified that Gary indicated the

       document was intended to be his last will and testament, Hartsock testified she

       was unsure of what Gary intended. A conflict in the evidence is for the finder

       of fact to resolve. See Callaway v. Callaway, 932 N.E.2d 215, 222 (Ind. Ct. App.

       2010) (holding that to the extent there is a conflict between the attestation



       4
         Donna Johnson, Gary’s sister, testified that she was unsure if the signature on the document was in fact
       Gary’s. Because there were two eyewitnesses who testified they saw Gary sign the document, we do not give
       credit to Johnson’s doubts.

       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019             Page 11 of 16
       clause in a will or a proof of will and the testimony of an attesting witness, it is

       a matter for the factfinder to resolve). The trial court here found there was

       insufficient evidence that Gary published the document in accordance with

       statute. There is substantial evidence of probative value supporting this finding,

       and we will not reweigh the evidence. See Hartig, 760 N.E.2d at 671.


                                              B. Appearance
[15]   The trial court also found, as explained in its March 2018 order, that the

       document “contains stricken lines, question marks and drawn arrows which

       show uncertainty regarding whether [Gary] had ever finalized his intent.” App.

       of Appellant, Vol. Two at 12. Even though the trial court’s finding regarding

       the publication of the will is sufficient alone to support denying probate of the

       document, we also address this reason for denying probate. It is undisputed

       that almost half of the February 2015 document is in Ruth’s handwriting.

       Donna Johnson, Ruth’s daughter and Gary’s sister, marked a copy of the

       February 2015 document during her testimony to show the parts she believed to

       be in her mother’s handwriting. Ruth admitted through her attorney that the

       places Donna marked “are her handwriting plus up in the right-hand corner is

       some more stuff that she scribbled in there.” Tr., Vol. I at 58. There are, as

       seen above, supra ¶ 3, arrows, asterisks, question marks, margin notations, and

       strike-outs on the face of the document. Kuebel testified that the document

       presented in court looked like the same document he signed, so it does not

       appear that Ruth added anything after the document was signed.



       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 12 of 16
[16]   Ruth contends there is no impediment to admitting an “untidy document” to

       probate, citing Powers v. Lacny, 671 N.E.2d 1215 (Ind. Ct. App. 1996) and Estate

       of Funk v. Purdue Univ., 654 N.E.2d 1174 (Ind. Ct. App. 1995). Br. of Appellant

       at 18-19. Powers addressed whether an otherwise valid will from which a name

       had been cut and written interlineations made after execution should have been

       admitted to probate or whether the mutilations revoked the will. Because none

       of the mutilations struck an essential portion of the will (such as the testator or

       witness signatures), the trial court’s admission of the will to probate was

       affirmed. 671 N.E.2d at 1216. Estate of Funk also concerned whether

       alterations to a valid will made after it was executed revoked the will. 654

       N.E.2d at 1177. Thus, Powers and Estate of Funk are distinguishable from this

       case, where the document was “untidy” when it was signed, and the question is

       not whether a valid will was revoked but whether there is a valid will at all. We

       agree with Ruth that the solemnity of Gary calling two people to witness him

       signing the document is somewhat at odds with simply drafting his “wishes” to

       take to an attorney, but signing a document that includes contradictory terms,

       marked out provisions, and question marks in place of important terms is also

       at odds with intending the document to be a solemn testamentary instrument.

       The evidence is not without conflict in Ruth’s favor and therefore we cannot

       say that the trial court’s decision is clearly erroneous.


                                       C. Possibility of Fraud
[17]   The trial court also raised the specter of Ruth engaging in some sort of fraud to

       obtain all of Gary’s estate when it stated it had considered Donna’s concerns

       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 13 of 16
       regarding Ruth’s repeated assertions that Gary did not have a will and her

       alleged offer to pay Donna to convince her siblings to allow Ruth to inherit

       Gary’s entire estate. Ruth’s conduct after Gary’s death has no bearing on

       whether a document Gary signed in 2015 was validly executed if it cannot be

       tied to undue influence or duress. And although the trial court did not

       specifically mention that Ruth admitted she wrote part of the February 2015

       document, there was no testimony that she coerced Gary to sign the document.

       As Gary was unmarried, had no children, and was close to his mother, leaving

       everything to Ruth would not be an unusual disposition.


                                 D. Subsequent Unsigned Will
[18]   The trial court also considered that an attorney drafted a will for Gary after the

       February 2015 document that was never executed. Assuming the February

       2015 document is otherwise valid, this is not an appropriate consideration.

       Revocation of a will is governed strictly by statute. Indiana Code section 29-1-

       5-6 allows revocation of a written will in two ways: 1) the testator or another in

       his presence and at his direction destroys or mutilates the will with intent to

       revoke or 2) the testator executes another writing for that purpose which is

       executed as required by statute. Because the attorney-drafted will was never

       executed, it did not revoke any earlier will. If the opposite were true, then any

       time a testamentary document is drafted it would void an existing valid

       testamentary document even if it does not accurately reflect the testator’s

       testamentary intent. Such a construction would leave a testator without any

       valid will.

       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 14 of 16
                                   E. December 2010 Document
[19]   Finally, the trial court considered the “newly discovered evidence” offered by

       Ruth to bolster her claim that the February 2015 document should be admitted

       to probate. In denying Ruth’s motion to set aside, the trial court found that the

       December 2010 document does not comply with the requirements to be a will

       on its own merits, as it was notarized rather than witnessed, and that because it

       was executed over five years5 before the purported February 2015 will, it was

       “unpersuasive” as additional grounds to admit the February 2015 document.


[20]   There does not seem to be any real dispute about whether Gary intended for

       Ruth to benefit from his estate, whether outright or during her lifetime, but he

       simply did not observe the legal formalities for making a valid will to effectuate

       that intent. The December 2010 document may support Gary’s intentions

       regarding his estate but it does not bolster the legal validity of the February

       2015 document, which was the question before the trial court.


[21]   In sum, the trial court found that Gary did not properly publish the February

       2015 document, which was the question to be answered by Ruth’s petition to

       probate the document as Gary’s will and Daryl’s objection to doing so. The

       evidence supports the trial court’s conclusion on this question and we therefore




       5
         The trial court specifically noted that the gap between the two documents was “over five (5) years” when in
       fact it was slightly over four. App. of Appellant, Vol. Two at 11. Nonetheless, the time that passed between
       the two documents was significant.

       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019                Page 15 of 16
       hold the trial court did not abuse its discretion in denying Ruth’s motion to set

       aside its earlier order denying probate of the February 2015 document.



                                               Conclusion
[22]   The trial court properly denied admission of the February 2015 document to

       probate upon finding it had not been properly published as a last will and

       testament and therefore did not abuse its discretion in denying Ruth’s motion to

       set aside the order denying probate. The judgment of the trial court is affirmed.


[23]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1188 | January 24, 2019   Page 16 of 16
