MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                        May 30 2018, 9:34 am
regarded as precedent or cited before any                                         CLERK
court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                 Court of Appeals
the defense of res judicata, collateral                                            and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Alexander P. Pinegar                                     Leslie B. Pollie
Samuel R. Robinson                                       Travis W. Montgomery
Sarah J. Randall                                         Kopka Pinkus Dolin PC
Jessica L. Billingsley                                   Carmel, Indiana
Church Church Hittle & Antrim
Noblesville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elaine Davey,                                            May 30, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         89A01-1712-PL-2955
        v.                                               Appeal from the Wayne Superior
                                                         Court
Richard E. Boston,                                       The Honorable David E. Northam,
Appellee-Defendant                                       Special Judge
                                                         Trial Court Cause No.
                                                         89D01-1601-PL-3



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018               Page 1 of 8
[1]   Bruce and Elaine Davey hired an attorney to help them create and execute

      mutual wills. The attorney intended to sign Bruce’s will as one of two attesting

      witnesses, but failed to do so. As a result, after Bruce’s death, his estate was

      administered as intestate and Elaine received half, rather than all, of the estate.

      She filed a claim against the attorney for legal malpractice. The attorney sought

      summary judgment, arguing that because Elaine did not attempt to probate

      Bruce’s will, any causal chain was broken. The trial court agreed and granted

      summary judgment in favor of the attorney. We disagree, finding that any

      attempt to probate the will would have been fruitless. Therefore, we reverse

      and remand for further proceedings.


                                                        Facts
[2]   In 2011, Bruce and Elaine engaged attorney Richard Boston to provide legal

      estate planning services, including the creation of mutual wills. On July 15,

      2011, the Daveys met with Boston to review and sign the wills he had prepared.

      On Bruce’s will (the Will), each page contained a signature line for Bruce as the

      testator and a signature line for each of two attesting witnesses. The attesting

      witnesses were to be Boston and Nina Boston. While Nina signed the Will as

      an attesting witness, Boston failed to do so on any part of the document. 1 The

      Daveys elected to keep the original Will rather than leave it with Boston. It is




      1
        Boston stated in his deposition that he signed the original Will after it was photocopied by his assistant and
      that he also signed the photocopy for his own file. But the photocopy later found in Boston’s file did not bear
      his signature. Moreover, Boston told both Elaine and her daughter that he would sign the original Will after
      Bruce’s death, clearly implying that he knew he had not signed it before that time.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018                 Page 2 of 8
      undisputed that Bruce intended to leave his entire estate to Elaine if she

      survived him.


[3]   Bruce died on March 29, 2014. Elaine attempted to find the original Will but

      was unsuccessful. Elaine and her daughter, Azure Davey, went to Boston’s

      office and the receptionist provided them with a photocopy of the Will. It bore

      the signature of only one attesting witness. Boston later called both Elaine and

      Azure and offered to each of them to sign the original, if they found it, after the

      fact. He later said that he regretted making those statements, as signing the

      Will after the fact would not be “proper.” Appellant’s App. Vol. II p. 18.


[4]   After searching unsuccessfully for the original Will and, in any event, believing

      that it was invalid as it lacked a second witness signature, in August 2014,

      Azure filed a petition to open Bruce’s estate and be appointed administrator.

      She stated in her petition that Bruce died intestate; Elaine consented to the

      petition. Azure and the Daveys’ other child, Brigham Davey, acknowledged

      that Bruce intended to leave the entirety of his estate to Elaine, and would not

      have contested a probate proceeding. But because Bruce’s estate was

      administered as intestate, half of it passed to Elaine and the other half passed to

      Azure and Brigham.


[5]   On January 25, 2016, Elaine sued Boston for legal malpractice. On November

      15, 2016, Boston moved for summary judgment. Following briefing and a

      hearing, the trial court summarily granted summary judgment in favor of

      Boston.


      Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018   Page 3 of 8
[6]   Elaine instituted an appeal of the summary judgment order, but on March 17,

      2017, she found Bruce’s original Will in her safety deposit lockbox at her bank.

      The Will bore only one witness’s signature. She asked this Court for a

      temporary stay and remand to the trial court; this Court granted the request and

      dismissed the appeal without prejudice.2 On May 18, 2017, Elaine filed with

      the trial court a motion to set aside and vacate the summary judgment order

      based on the newly-discovered evidence. Following briefing and a hearing, the

      trial court denied her motion. Elaine now appeals.


                                     Discussion and Decision
[7]   Elaine argues that the trial court erred by granting summary judgment in favor

      of Boston and by denying her motion to set aside the judgment. Because we

      rule in her favor on the first issue, we need not consider the second.


[8]   Our standard of review on summary judgment is well settled:


               The party moving for summary judgment has the burden of
               making a prima facie showing that there is no genuine issue of
               material fact and that the moving party is entitled to judgment as
               a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
               Once these two requirements are met by the moving party, the
               burden then shifts to the non-moving party to show the existence
               of a genuine issue by setting forth specifically designated
               facts. Id. Any doubt as to any facts or inferences to be drawn
               therefrom must be resolved in favor of the non-moving



      2
        This Court stated that after remand proceedings concluded, Elaine could file a new notice of appeal to raise
      issues that would have been raised in her first appeal, plus any new issues that might be created by the trial
      court’s ruling on remand.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018                Page 4 of 8
               party. Id. Summary judgment should be granted only if the
               evidence sanctioned by Indiana Trial Rule 56(C) shows there is
               no genuine issue of material fact and that the moving party
               deserves judgment as a matter of law. Freidline v. Shelby Ins.
               Co., 774 N.E.2d 37, 39 (Ind. 2002).


       Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[9]    The underlying claim filed by Elaine against Boston is for legal malpractice.

       The elements of such a claim are (1) employment of an attorney creating a duty

       to the client; (2) failure of the attorney to exercise ordinary skill and knowledge

       (i.e., breach of the duty); and (3) that such negligence was the proximate cause

       of (4) damage to the client. E.g., Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430

       (Ind. Ct. App. 2006). The only element at issue in this case is proximate cause,

       which “requires that there be a reasonable connection between the defendant’s

       allegedly negligent conduct and the plaintiff’s damages. Proximate cause

       requires, at a minimum, that the harm would not have occurred but for the

       defendant’s conduct.” Gates v. Riley ex rel. Riley, 723 N.E.2d 946, 950 (Ind. Ct.

       App. 2000) (internal citation omitted). Proximate cause is generally a question

       of fact that should be left to the factfinder. E.g., Mundia v. Drendall Law Office,

       P.C., 77 N.E.3d 846, 855 (Ind. Ct. App. 2017), trans. denied.


[10]   According to Boston, any causal chain that may have linked his failure to sign

       the Will to Elaine’s ultimate damages was broken when she decided not to

       attempt to probate the Will and, instead, to concede to the administration of

       Bruce’s estate as intestate. We agree with Elaine, however, that any attempt to

       probate the Will would have been fruitless.
       Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018   Page 5 of 8
[11]   The right to make a will is statutory, and every valid will “must conform to the

       formalities and the requirements of the statutes concerning wills.” Pfaffenberger

       v. Pfaffenberger, 189 Ind. 507, 127 N.E. 766, 767 (1920). Therefore, “there is no

       such thing as a substantially correctly executed will. Either the will meets the

       legislative requirements or it is void.” Keener v. Archibald, 533 N.E.2d 1268,

       1270 (Ind. Ct. App. 1989). If the statutory requirements are not complied with,

       a court is powerless to act for a decedent, no matter how clearly his

       testamentary desires may be. Hinton v. Bryant, 99 Ind. App. 38, 190 N.E. 554,

       577 (1934). Indeed, the Indiana Probate Code permits only validly executed

       wills to be admitted to probate. Ind. Code § 29-1-7-13(a) (providing that when a

       will is offered for probate, “if the court finds that the testator is dead and that

       the will was executed in all respects according to law, it shall be admitted to

       probate”) (emphasis added).


[12]   Relevant to this case is the requirement that a will must be executed by the

       signature of the testator and at least two attesting witnesses. I.C. § 29-1-5-3(a).

       The attesting witnesses and the testator must sign in each other’s presence. I.C.

       § 29-1-5-3(b)(2); see also I.C. § 29-1-5-3(c) (noting that a will that is executed

       “substantially in compliance” with subsection (b) is not rendered invalid by the

       existence of additional signatures, but not including a provision regarding omitted

       signatures). It is undisputed that the Will does not comply with this strict




       Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018   Page 6 of 8
       requirement—it bears the signature of only one attesting witness.3 Therefore, it

       is void and would not have been admitted to probate even if Elaine had

       attempted it.


[13]   Boston directs our attention to Indiana Code section 29-1-7-5(5), which

       provides a way for a petitioner to ask that a lost will be admitted to probate. He

       argues that Elaine could have used this provision because she was unable to

       find the original Will until years later. We agree with Elaine, however, that this

       provision assumes that the “lost will was validly executed in the first place[.]”

       Appellant’s Br. p. 17 (emphasis original). Here, while the original Will was,

       indeed, lost, it was also void—and Elaine knew that it was void, because she

       knew that Boston had failed to sign it. In other words, there was never a valid

       will to lose. Therefore, attempting to probate the Will as a lost will would have

       either required perpetrating a fraud on the court or have been fruitless, given

       that the Will was void.


[14]   Because any attempt by Elaine to probate the Will would have been fruitless,

       there are issues of fact remaining as to whether Boston’s alleged negligence

       proximately caused Elaine’s damages. The trial court erred by granting

       summary judgment in favor of Boston.




       3
         Boston states in his brief, without explanation or citation to the record, that the copy of the Will “contained
       all necessary signatures and would have been deemed valid[.]” Appellee’s Br. p. 13 n.2. But nowhere in the
       record is there a copy of the Will that contains all necessary signatures.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018                   Page 7 of 8
[15]   We reverse and remand for further proceedings.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1712-PL-2955 | May 30, 2018   Page 8 of 8
