                                                                         FILED
                                                                     Mar 24 2020, 9:37 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karl L. Mulvaney                                           Mark D. Hassler
Gregory J. Duncan                                          Jacob H. Miller
Nana Quay-Smith                                            Hassler Kondras Miller, LLP
Bingham Greenebaum Doll, LLP                               Terre Haute, Indiana
Indianapolis, Indiana
Gerald H. McGlone
Terre Haute, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Revocable                             March 24, 2020
Trust Agreement Created by the                             Court of Appeals Case No.
Settlor, Anil Kumar Sarkar                                 19A-TR-1814
Dipa Sarkar,                                               Appeal from the Vigo Superior
                                                           Court
Appellant-Petitioner,
                                                           The Honorable Sarah K. Mullican,
        v.                                                 Judge
                                                           Trial Court Cause No.
Anuradha (“Mili”) Sarkar                                   84D03-1503-TR-1438
Naugle,
Appellee-Respondent.



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020                           Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Dipa Sarkar (Dipa), appeals the trial court’s findings of

      facts and conclusions thereon in favor of Appellee-Respondent, Anuradha

      Sarkar Naugle (Mili), concluding that the revocable trust was not created in

      contemplation of death and for the purpose of defeating Dipa’s spousal elective

      share.


[2]   We affirm.


                                                     ISSUE
[3]   Dipa presents this court with one issue on appeal, which we restate as:

      Whether a surviving spouse can satisfy her election to take against the will of

      her deceased husband when he transferred the majority of his assets into a

      revocable trust.


                       FACTS AND PROCEDURAL HISTORY
[4]   Dipa is the surviving spouse of Anil Sarkar (Anil), who died on February 24,

      2015. Dipa and Anil were married in 1958 in India, where they attended

      medical school, and remained married for fifty-six years until Anil’s death. At

      the time of their marriage, Anil was a widower with two children from his

      previous marriage, Ashoke Sarkar (Ashoke) and Mili. Dipa and Anil had one

      child together, Rumu Sarkar (Rumu). They immigrated to the United States to

      complete their medical residencies in pathology and became permanent

      residents in 1961. Dipa and Anil brought Rumu with them to the United

      States, while Ashoke and Mili remained in India for many years.

      Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020        Page 2 of 21
[5]   In 1969, Dipa became the laboratory director at Mary Sherman Hospital in

      Terre Haute, Indiana, while Anil became the laboratory director at Clay

      County Hospital. Anil created the Sarkar Medical Corporation, which received

      the couple’s salaries and provided a profit-sharing plan. Both Dipa and Anil

      retired in 1990 due to Anil’s poor health.


[6]   Beginning in the 1970’s and continuing throughout their marriage, Dipa and

      Anil kept separate bank accounts, pension plan accounts, and investment

      accounts. Anil spent a big part of his income on his extended family in India.

      He took care of his parents and their farm; he built homes for his eight living

      siblings as well as a school and latrines for the village, in addition to gifts and

      supplies. Anil also financially supported Ashoke and Mili as adults, while Dipa

      paid for Rumu’s expenses and education.


[7]   In 1992, after they both retired, Dipa retained attorney Keith Lyman (Attorney

      Lyman) to create a revocable trust of which she was the settlor and primary

      beneficiary during her life. The primary purpose of the trust was “to provide for

      the management of the settlor’s assets, both presently and during any future

      period of disability; being a preferred alternative to guardianship proceedings

      and a simplified means of accomplishing both lifetime and death transfers of

      those assets.” (Exh. Vol. V, p. 173). The trust agreement provided that Dipa

      was the primary beneficiary during her life, and for the administration of the

      trust for her benefit during any period of incapacitation. Dipa’s trust agreement

      specified that upon her death, the trustee would distribute to Anil “the

      minimum amount necessary to reduce the federal estate tax payable as a result

      Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020          Page 3 of 21
      of my death to the least amount possible,” and “I acknowledge that is it my

      intent that the amount to be distributed to my spouse shall not exceed an

      amount which will provide for zero tax upon my death.” (Exh. Vol. V, pp. 178-

      79). Rumu was the sole primary beneficiary of the residue of the trust corpus

      following any transfer to Anil necessary to reduce estate tax liability. Dipa’s

      trust agreement also included that Anil, as successor trustee, would not have

      the power to appoint any trust property for his benefit, and he was prohibited

      from exercising discretion in his own favor.


[8]   In 1993, at Dipa’s insistence, Anil also sought Attorney Lyman’s services, and

      on August 23, 1993, Anil executed the Anil Kumar Sarkar Revocable Trust

      Agreement, which was nearly identical in all respects to Dipa’s, except that Mili

      was named as the residuary beneficiary. Both Dipa and Anil transferred their

      respective investment accounts to their respective trusts, and on March 4, 1994,

      both executed their own beneficiary designations naming their respective trusts

      as beneficiaries of their respective interests in the Sarkar Medical Corporation

      Profit-Sharing Trust and Pension Plan. By amendment on August 23, 1996,

      Dipa and Anil both executed beneficiary designations for their respective

      interests in the Sarkar Medical Corporation Profit-Sharing Trust and Pension

      Plan naming the other as the primary beneficiary, with their respective trusts as

      secondary beneficiary.


[9]   On October 23, 1996, Attorney Lyman wrote a letter, addressed to both Anil

      and Dipa, in which he restated the couple’s respective goals and objectives,

      Anil’s being to provide for Mili and Dipa’s being to provide for Rumu. The

      Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020       Page 4 of 21
letter acknowledged a recent discussion with Anil and Dipa about “the

advantages of designating each spouse as the primary beneficiary on your

IRA’s” but stated that, “[b]oth of you have indicated to me that you do not

wish to leave your respective IRA accounts to each other,” and that “[e]ach of

you are generally uncomfortable with designating the spouse as the primary

beneficiary of the IRA proceeds because you would no longer maintain control

over the ultimate beneficiaries of each such IRA account after your respective

deaths.” (Exh. Vol. VI, p. 42). Additionally, Attorney Lyman included a

summary of a surviving spouse’s right to elect to take against a deceased

spouse’s will. After describing this right, Attorney Lyman advised,


        Indiana law has determined that the spouse’s statutory election
        can be made only against the probate assets of the spouse who
        died first. It has been ruled that this right of election does not
        extend to trust assets. Whether that would continue to be the law
        of the State of Indiana remains to be seen. It is therefore possible
        that the second spouse to die could make a claim against the first
        to die’s IRA proceeds or possibly the trust. Therefore if you are
        willing to assume that risk, then you may proceed without any
        additional documentation.


(Exh. Vol. VI, p. 44). Lyman continued that if Anil and Dipa wished to

foreclose this possibility, another document would be required, but reiterated,

“[a]s I mentioned earlier, it is my opinion that this right of election would not

extend to the IRA’s or trust property.” (Exh. Vol. VI, p. 45). Neither Dipa nor

Anil executed any agreement to waive their spousal right to an elective share.

On November 1, 1996, Dipa and Anil both amended their respective trust


Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020        Page 5 of 21
       agreements, opting for distributions to each other’s respective non-spouse

       beneficiaries and acknowledging that they chose to leave nothing to each other.


[10]   Dipa continued to make amendments to her trust agreement with the aid of

       Attorney Lyman. By letter, dated March 11, 1998, Attorney Lyman advised

       Dipa of the benefits of purchasing life insurance and gifting, stating that


               [w]e have discussed the tax advantages of naming your husband
               as primary beneficiary on those retirement accounts. You have
               informed me, however, that you would prefer not to name him as
               primary beneficiary because he has sufficient retirement assets in
               his own name and you have a desire to provide for your daughter
               primarily with retirement accounts, and other beneficiaries with
               your non-retirement accounts currently in your revocable trust.


       (Exh. Vol. VI, pp. 212-14). On July 15, 1998, Attorney Lyman informed Dipa

       that he could no longer represent either spouse. Referencing his letter of March

       11, 1998, Attorney Lyman noted a potential conflict of interest between Dipa

       and Anil, as Dipa indicated to him that she did not wish for him to discuss her

       estate planning with Anil.


[11]   On March 31, 1997, Anil restated his entire trust agreement (Trust or Trust

       Agreement). The Trust Agreement provided that “because my spouse, [Dipa],

       has more assets than I have and will not need my money or property to support

       herself, I choose to leave nothing to her.” (Exh. Vol. VI, p. 110). In

       accordance with this expressed intention, the Trust Agreement devised

       $250,000 to Rumu, $100,000 to each of Mili’s two sons, $10,000 to Anil’s



       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020        Page 6 of 21
       brother Sekhar Sarkar, and $5,000 to Ashoke, with the remainder of the corpus

       to Mili.


[12]   Anil amended his Trust Agreement seven times, with the seventh and final

       Trust amendment occurring on March 14, 2014. From the original Trust

       Agreement through the fourth amendment, Anil made no provision for

       distribution of any Trust assets to Dipa, stating, [b]ecause my spouse, [Dipa],

       has more assets than I have and will not need my money or property to support

       herself, I choose to leave nothing to her.” (Exh. Vol. VI, p. 110). Beginning

       with the fifth amendment through the final amendment, Anil provided for Dipa

       to receive $50,000. Specifically, in the final amendment, he named Mili as

       successor trustee and directed her to distribute $250,000 to Rumu, $30,000 to

       Ashoke, $50,000 to Sekhar, and $50,000 to Dipa if she survived him by thirty

       days. The remainder of the Trust assets were to be distributed to Mili, or if she

       was deceased, to her descendants per stirpes.


[13]   The Trust Agreement was funded by two investment accounts owned by Anil.

       One account, titled in the name of the Trust and held by Anil as trustee,

       consisted of stocks and bonds and was valued at $924,635 at the time of Anil’s

       death. The second account that funded the Trust Agreement was the IRA

       valued at $1,007,614. Shortly before he died, Anil also had his monthly social

       security payments diverted from his checking account into the Trust

       Agreement.




       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020       Page 7 of 21
[14]   In 2000 and again in 2003, Dipa signed consent forms of persons other than

       herself as beneficiaries of Anil’s Individual Retirement Account (IRA). On

       August 23, 2007, Anil and Dipa both signed nearly identical sets of documents

       for the transfer of their respective trust accounts and IRAs to Morgan Stanley,

       and both designated their respective trust accounts as beneficiaries of their

       respective IRAs. Neither spouse signed the other’s designation where indicated

       for spousal consent required in community property states. Both Anil and Dipa

       signed a joint letter to their joint financial adviser, directing payment from their

       respective IRAs to their respective trusts, and on August 2, 2010, Dipa received

       a mailing from Morgan Stanley which included detailed information about

       Dipa’s and Anil’s investment plan and amounts invested.


[15]   On January 20, 2014, thirteen months before his passing, Anil executed a

       simple pour-over will that transferred his remaining probate assets, if any, to the

       Trust Agreement. Anil appointed Rumu as his personal representative and

       directed that she use his probate estate to pay all of his debts, medical expenses,

       funeral expenses, estate administration expenses, and “all inheritance, estate,

       and like taxes . . . payable by reason of [his] death and in connection with any

       property, whether passing under this will or otherwise” without reimbursement

       from any person. (Exh. Vol. II, pp. 16-18). Anil made no provision for Dipa in

       his will other than to leave her his tangible personal property, such as his

       clothes and household goods.


[16]   Shortly after Anil’s death on February 24, 2015, Rumu filed a petition to

       probate the will. The will was admitted to probate and Rumu was appointed as

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020         Page 8 of 21
       personal representative the following day. On March 10, 2015, Dipa filed a

       petition to docket the Trust and for relief, challenging the validity of Anil’s

       Trust and the propriety of Anil’s decision to divert the majority of his assets to

       the Trust in an attempt to disinherit her. Dipa subsequently filed an election to

       take against the will under Indiana Code section 29-1-3-1, which Mili contested

       as untimely. Mili moved for summary judgment on Dipa’s petition, which was

       granted by the trial court. Consequently, Dipa timely appealed.


[17]   On appeal, we concluded that Dipa had made a timely election to take against

       Anil’s will and that, therefore, Dipa was allowed to amend her petition to more

       specifically allege her elective share claim against the assets of Anil’s trust. See

       Matter of Sarkar, 84 N.E.3d 666, 675 (Ind. Ct. App. 2017) (Sarkar I). Finding

       genuine issues of material fact with respect to Dipa’s ability to satisfy her

       elective share with the assets of Anil’s Trust, we remanded to the trial court for

       further proceedings.


[18]   On remand and after extensive discovery, the trial court conducted a trial over

       four separate days, beginning July 6, 2018. Prior to trial, the parties stipulated

       that Dipa suffered from an irreversible degenerative neurological condition and

       lacked the capacity to testify. An agreement was reached that Dipa’s testimony

       at trial would be limited to the deposition testimony she gave in August 2015.

       On May 24, 2019, the trial court entered its findings of fact and conclusions

       thereon, issuing judgment in favor of Mili. Recognizing that Anil’s Trust assets

       were not subject to Dipa’s elective share, the trial court concluded, in pertinent

       part, that:

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020          Page 9 of 21
               10. [] Anil’s [T]rust was established in 1993, twenty-two (22)
               years prior to his death, for the purpose of obtaining assistance in
               personal and business affairs as well as disposing of his property
               at death. Anil had check writing authority on his [T]rust and
               could amend or modify it at any time. Both Anil and Dipa were
               present with [Attorney Lyman] when the original estate planning
               advice was provided. The couple agreed to dispose of their assets
               separately and not to each other. Dipa was aware of Anil’s
               [T]rust and its provisions because it was identical to hers.
               Further, Anil and Dipa used a joint financial adviser, [], who
               testified that the couple’s investments were identical. [The
               financial advisor] testified that Anil and Dipa came together to
               her office to execute financial documents and that each was
               aware of the others IRA and trust.


               12. The [c]ourt finds no evidence that Anil’s intent in creating the
               [T]rust was to frustrate Dipa’s right to a statutory elective share.
               The [c]ourt further finds that Anil’s [T]rust was not created in
               contemplation of his death and is therefore not testamentary.
               Therefore, the [c]ourt finds that Anil’s [T]rust assets are not
               subject to Dipa’s statutory elective share.


       (Appellant’s App. Vol. II, pp. 39-40).


[19]   Dipa now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
                                              I. Standard of Review


[20]   The trial court entered special findings of fact and conclusions of law pursuant

       to Indiana Trial Rule 52(A). These special findings should contain all the facts

       necessary for recovery by the party in whose favor the conclusions of law are

       found and should contain a statement of the ultimate facts from which the trial
       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020        Page 10 of 21
       court determines the legal rights of the parties to the action. Seslar v. Seslar, 569

       N.E.2d 380, 383 (Ind. Ct. App. 1980). Special findings provide the parties and

       the reviewing court with the theory on which the trial court decided the case so

       that the right of review may be effectively preserved. See Display Fixtures Co. v.

       R.L. Hatcher, Inc., 438 N.E.2d 26, 30 (Ind. Ct. App. 1982). Where a party

       challenges special findings and conclusions, our standard of review is two-

       tiered. First, we determine whether the evidence supports the findings, and

       second whether the findings support the judgment. Dunnewind v. Cook, 697

       N.E.2d 485, 487 (Ind. Ct. App. 1998). The trial court’s findings and

       conclusions will be set aside only if they are clearly erroneous. Id. Findings of

       fact are clearly erroneous if the record lacks any evidence or reasonable

       inferences to support them. Id. In reviewing the trial court’s entry of special

       findings, we neither reweigh the evidence nor reassess the credibility of the

       witnesses. Id. Rather, we must accept the ultimate facts as stated by the trial

       court if there is evidence to sustain them. Id. This court may affirm the

       judgment on any legal theory supported by the findings, but only if the

       alternative theory has been briefed by all parties and is consistent with all of the

       trial court’s findings and inferences drawn therefrom. Mitchell v. Mitchell, 695

       N.E.2d 920, 923-24 (Ind. 1998).


                                     II. Elective Share of Surviving Spouse


[21]   Dipa contends that Anil’s transfer of assets to his Trust Agreement signaled a

       clear intent to disown her and divest her of her right to take against the will. As

       Anil’s Trust was created in contemplation of death and with a clear intent to

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020         Page 11 of 21
       disinherit her, Dipa maintains the trial court erred to deny her right to take her

       statutory elective share from the Trust’s assets.


[22]   It is well-established that in Indiana, surviving spouses hold certain statutory

       rights upon the death of their spouse. Boetsma v. Boetsma, 768 N.E.2d 1016,

       1020 (Ind. Ct. App. 2002), trans. denied. As such, pursuant to Indiana Code

       section 29-1-3-1, the surviving spouse of an individual who dies testate may

       elect to take against the will if the surviving spouse is not satisfied with the

       provision made for him or her in the will. In re Estate of Weitzman, 724 N.E.2d

       1120, 1122 (Ind. Ct App. 2000). Thus, our statutory law protects a spouse from

       being disinherited by providing a spousal allowance from their deceased

       spouse’s estate and the ability of the surviving spouse to take against the

       provisions of the deceased spouse’s will, thereby ensuring a certain degree of

       future support. Brown v. Guardianship of Brown, 775 N.E.2d 1164, 1167 (Ind. Ct.

       App. 2002). A surviving spouse may only waive his or her right to take against

       the will by a written agreement after full disclosure of the nature and extent of

       that right. I.C. § 29-1-3-6. No such written agreement was executed in this

       case.


[23]   In determining the estate of the deceased spouse for the purpose of computing

       the amount due to the spouse electing to take against the will, the court is to

       consider only such property as would have passed under the laws of descent

       and distribution. In re Estate of Weitzman, 724 N.E.2d at 1123. A valid inter

       vivos trust does not pass under the laws of descent and distribution and thus

       does not become part of the decedent’s probate estate. Dunnewind, 697 N.E.2d

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020         Page 12 of 21
       at 488. In In re Walz, 423 N.E.2d 729, 732 (Ind. Ct. App. 1981), we described

       the effect of an inter vivos trust as follows:


               The inter vivos trust is a unique legal entity. Through its use, the
               settlor may transfer property to a trustee reserving for the life of
               the settlor the beneficial use of the property with the remainder to
               designated beneficiaries. Although the settlor enjoys the
               beneficial use of the trust property until his death that trust
               property is not subject to the administration of his estate. That is,
               the trust property is not in the decedent-settlor’s estate. The
               Probate Code, which controls the distribution of the decedent’s
               property, does not control the inter vivos distributions of property.


[24]   However, in recent years, Indiana jurisprudence started recognizing a spouse’s

       ability to enforce his or her elective share claim against the deceased spouse’s

       non-probate property under certain circumstances. Through Leazenby v. Clinton

       Co. Bank & Trust, 355 N.E.2d 861 (Ind. Ct. App. 1976) and its progeny, Indiana

       precedents have shaped the conditions in which a surviving spouse may reach

       beyond the will into a valid inter vivos trust to satisfy the statutory elective right

       when faced with insufficient probate assets.


[25]   In Leazenby, we held that an inter vivos trust established by a wife successfully

       transferred her property and removed it from the estate, thereby in effect

       defeating her husband’s interest in his statutory elective share. Id. at 866. We

       reached this conclusion by recognizing that a transfer solely for the purpose of

       defeating the spouse’s statutory share is void. However, we found that wife and

       husband, a subsequent childless spouse, had maintained separate properties and

       that wife had gone to the bank to establish a trust for the purpose of obtaining

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020           Page 13 of 21
       aid in handling her affairs three years prior to her death. Id. at 862. The trust

       agreement reserved to the wife the right to income from the trust for life, the

       right to control the actions of the trustee, and the right to revoke. Id. Husband

       was granted the right to reside in the settlor’s former house for six months

       following her death. Id. As time went on, wife was confined to a nursing home

       and her separate funds were used to pay for her care. Id. The Leazenby court

       observed that it was obvious husband was aware of this situation and had

       acceded to it. Id. at 866. There was no indication that it was the settlor’s intent

       to use the device of a trust to defeat her husband’s statutory share in her estate;

       rather, she had merely conveyed a portion of her estate during her lifetime,

       which she had every right to do. See id. at 866-67.


[26]   Approximately ten years later, in Walker v. Lawson, 526 N.E.2d 968, 969 (Ind.

       1988), our supreme court was faced with the question of whether it was

       malpractice for an attorney to draft a will, and not a trust, for a client who had

       recently learned of a fatal diagnosis and who “had come [to the attorney] for

       the stated purpose of depriving her husband of any interest in her estate.”

       Acknowledging both the rule set forth in Leazenby and the holding of

       Crawfordsville Trust Co. v. Ramsey, 100 N.E.1049 (Ind. Ct. App. 1913), in which

       the court upheld the trial court’s invalidation of assignments of stock and bonds

       by a spouse who made the assignments knowing he would soon die and for the

       sole purpose of defeating his spouse’s elective rights with respect to the assigned

       property, the Walker court ruled that neither the conveyance of her land to a

       trust naming her children as beneficiaries nor a conveyance of that land to

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020        Page 14 of 21
       herself and her children with survivorship rights would have been effective

       against the surviving spouse’s elective rights. Id.


[27]   Again after a ten-year interval, this court decided Dunnewind, 697 N.E.2d at

       487, where we found in favor of the surviving spouse’s right of election. Here,

       the settlor executed a will in 1976 in which she left all her assets to her children

       from a prior marriage. Id. at 487. After discovering she was terminally ill in

       1995, she created a trust under which her husband would receive a life estate in

       the marital residence and household goods, as well as a predetermined sum of

       money, with the remainder to go to settlor’s children. Id. The trust made no

       provision for payment of income to the settlor. Based on the evidence

       presented, the Dunnewind court opined that “there was no showing that the trust

       was executed to assist the [settlor] with business or financial affairs,” and held

       that “the evidence presented at the hearing supports the trial court’s findings

       that [the settlor] executed the trust in contemplation of her impending death

       and did so to defeat [husband’s] statutory share . . . Given such circumstances,

       the trust fails to defeat the spouse’s share given the law announced in

       Crawfordsville and Walker.” Id. at 487, 490. We also noted that the trust had a

       “testamentary character,” because the trust agreement did not give the settlor a

       life interest in the trust property, yet the trustee, the settlor’s daughter, permitted

       her to reside in the residential property and paid to her the trust’s income until

       the settlor’s death. Id. The court found that neither the settlor nor the

       beneficiaries intended the transfer to the trust to take effect until the settlor’s

       death, similar to the finding in Crawfordsville. Id. at 490.


       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020          Page 15 of 21
[28]   Finally, in In re Estate of Weitzman, 724 N.E.2d 1120, 1121 (Ind. Ct. App. 2000),

       both husband and wife had children from a prior marriage. Before the

       marriage, Wife refused to sign a prenuptial agreement that would have waived

       her elective share rights to her husband’s estate. Id. Four years into the

       marriage, husband executed a revocable living trust, benefiting his children and

       appointing the bank as trustee while husband retained the power to direct all

       trust investment and receive the income from the trust. Id. Within three years,

       husband transferred significant assets into the trust. Id. Wife knew that

       husband had a trust; however, there was no evidence she was aware of the

       provisions of the trust. Id. at 1121-22. Husband died six years after creating the

       trust and several years after funding it. Id. After describing the nature and

       effect of an inter vivos trust and restating the general rule in Leazenby and the

       policy grounds upon which that decision was reached, the Weitzman court

       stated, “[t]here is one pertinent exception to the rules and policies we relied on

       in Leazenby. When a testator executes a trust in contemplation of his impending

       death and does so in order to defeat the surviving spouse’s statutory share, the

       trust will be considered testamentary in nature and will not defeat the spouse’s

       share.” Id. at 1123. Finding that the facts did not negate the possibility that

       husband’s intent was to defeat the surviving spouse’s elective share, we reversed

       the trial court’s summary judgment in favor of husband and remanded for trial.

       Id. at 1125.


[29]   Accordingly, based on these precedents, the determinative issue before us is

       whether the trial court properly found that Anil did not establish the Trust in

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020         Page 16 of 21
       contemplation of his death and with the purpose of defeating Dipa’s statutory

       share. As we noted in Sarkar I, “[t]he question of whether a testator has

       established a trust in contemplation of death and with the intent of defeating his

       surviving spouse’s statutory share is a fact-sensitive inquiry.” Sarkar I, at 677.


                                         A. In Contemplation of Death


[30]   Although Anil created the Trust in 1993, he restated the instrument in its

       entirety on March 31, 1997. Anil passed away eighteen years later, on

       February 24, 2015. When a trust agreement is restated, the reader should

       “forget all prior documents and just look at this document, because these are

       the trust provisions that are currently in effect.” Bender, 1 Living Trusts, Forms

       and Practice, § 9.07 (2019). However, to analyze and determine Anil’s actions

       and intent, we will need to take into account the circumstances surrounding the

       prior version of the Trust.


[31]   Anil’s purpose of his restated Trust indicated that he pursued “a simplified

       means of accomplishing both lifetime and death transfers” of his assets, with

       assistance in his personal and business affairs. (Exh. Vol. VI, p. 109). Unlike

       Dunnewind where there was no showing that the trust was executed to assist in

       financial affairs, Anil’s Trust, created after he retired, was initially utilized as

       part of his estate and income tax planning efforts, and it later held and managed

       the trust assets, with Anil having check writing authority. See Dunnewind, 697

       N.E.2d at 487. Appointing himself as trustee, Anil retained all trust property

       under his control, “with no restrictions on the transferability of such property.”


       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020          Page 17 of 21
       (Exh. Vol. VI, p. 112). He amended the Trust seven times, with the final

       amendment executed approximately one year prior to his death.


[32]   Although the record is documented with Anil’s extensive cardiac health

       problems, contrary to Dunnewind and Walker, there is no evidence indicating

       that Anil expected to die anytime soon after the effectuation of the Trust

       instrument. See Dunnewind, 697 N.E.2d at 487 (trust was created after

       becoming terminally ill); Walker, 526 N.E.2d at 969 (trust was created after

       settlor learned of fatal diagnosis). Rather, it was not until 2013, or twenty years

       after creating the initial trust, that Anil voiced his concerns to Rumu of an

       impending death. There is no evidence in the record that throughout the

       lifetime of the Trust—original or restated with amendments—Anil’s position

       with respect to the purpose of the Trust and identification of the remainder

       beneficiaries ever changed. Likewise, there is no evidence that any amendment

       was effectuated in expectation of death. Rather, the amendments only

       fluctuated the amount left to each remainder beneficiary, leading us to conclude

       that internal family relationships played a significant role in the creation of the

       amendments and not any belief that Anil was to die shortly.


[33]   As in Weitzman, significant assets were transferred into the trust throughout the

       years, with the most recent transfer being Anil’s social security payments. See

       In re Weitzman, 724 N.E.2d at 1122. However given the fact that the Trust had

       been assembling Anil’s assets since 1993—the investment account and IRA had

       been transferred to the Trust by 1998—and that the social security payments

       only amount to a minor addition to the complete Trust corpus, we cannot

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020        Page 18 of 21
       conclude that this transfer alone would change our conclusion that Anil’s Trust

       and corresponding transfers of assets were not created in contemplation of

       death.


                                            B. Intention to Disinherit


[34]   While the Trust’s express stated purpose was to assist Anil with his business

       and financial affairs, at the same time, Anil also acknowledged in the

       instrument that “[b]ecause my spouse, [Dipa], has more assets than I have and

       will not need my money or property to support herself, I choose to leave

       nothing to her.” (Exh. Vol. VI, p. 110). Attorney Lyman testified extensively

       about Anil and Dipa’s corresponding estate planning goal to leave their

       significant assets to their non-spousal beneficiaries. Nevertheless, this explicit

       intent appears to be contradicted beginning with the fifth amendment through

       the final amendment, where Anil directed “the trustee to distribute, to [his]

       spouse, [Dipa], the sum of Fifth [sic] Thousand Dollars ($50,000.00), outright

       and free of trust, if she survives me by thirty (30) days[.]” (Exh. Vol. II, p. 21).


[35]   Throughout their married life, Anil and Dipa kept their financial affairs divided

       with separate bank accounts, pension plan accounts, and investment accounts.

       Although Anil and Dipa initially retained Attorney Lyman to create their

       individual trust accounts and to advise them on the legal ramifications thereof,

       by July 1998, a potential conflict of interest ceased Attorney Lyman’s

       representation and Anil and Dipa consulted with their individual attorneys, but

       were still advised by the same financial advisor at Morgan Stanley. However,


       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020         Page 19 of 21
       throughout the time that Attorney Lyman represented Anil and Dipa, they met

       with him together on most, if not all occasions, and discussed their respective

       trust provisions in the presence of each other. Attorney Lyman testified that

       Anil and Dipa had an agreement “to dispos[e] of their assets to their respective

       beneficiaries and not to each other.” (Exh. Vol. V, p. 49). After designating a

       non-spousal remainder beneficiary of the trust corpus at the creation of their

       respective trusts, both Anil and Dipa amended their trust agreements on

       November 1, 1996, again opting for distributions to non-spousal beneficiaries

       and acknowledging that they chose to leave nothing to each other.


[36]   In 2007, Anil and Dipa signed a joint letter to their joint financial advisor

       directing payment from their respective IRAs to their respective trusts. On

       August 2, 2010, Dipa received a mailing from Morgan Stanley, which included

       detailed information about both Dipa’s and Anil’s respective investment plan,

       IRA, and IRA beneficiary. They continued to meet jointly with their financial

       advisor and they reviewed “both client account assets at the same time.” (Exh.

       Vol. VIII, p. 15).


[37]   Accordingly, unlike Weitzman, where the wife knew that husband had a trust

       but was unfamiliar with its provisions, here, there is overwhelming evidence

       from which the trial court could have reasonably inferred that Anil and Dipa

       were aware of the other spouse’s trust provisions and estate planning. See In re

       Weitzman, 724 N.E.2d at 1121. In fact, Anil and Dipa commenced their trust

       creation with the same attorney and although they later retained individual

       counsel, they were advised by the same financial planner, and had joint

       Court of Appeals of Indiana | Opinion 19A-TR-1814 | March 24, 2020       Page 20 of 21
       meetings in which their respective assets were discussed. Anil transferred his

       assets to the Trust with Dipa’s full knowledge while at the same time she

       transferred her own assets to a nearly identical trust. As there is “no conclusive

       evidence that there was a secreting of the real ownership of the property, or that

       [Dipa] did not know and fully approve of the trust agreement,” we conclude

       that Anil did not create the Trust with the intent to disinherit Dipa. See

       Leazenby, 355 N.E.2d at 866. Consequently, as there is substantial evidence that

       Anil did not create the Trust in contemplation of death and with the intent to

       disinherit Dipa, we affirm the trial court’s decision to deny Dipa’s claim to

       satisfy her spousal elective share from the Trust corpus.


                                              CONCLUSION
[38]   Based on the foregoing, we hold that Dipa cannot satisfy her statutory election

       to take against the will with the assets in her deceased husband’s inter vivos

       Trust.


[39]   Affirmed.


[40]   Baker, J. and Brown, J. concur




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