                                                             Aug 29 2013, 5:35 am

FOR PUBLICATION


ATTORNEY FOR APPELLANTS:                      ATTORNEY FOR APPELLEES:

D. ERIC NEFF                                  ROBERT G. BERGER
Crown Point, Indiana                          Highland, Indiana




                             IN THE
                  COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TRUST OF                 )
DOROTHY RHOADES                               )
                                              )
ROBERT KUTCHINSKI and                         )
SHELIA GRAVES,                                )
f/k/a SHELIA KUTCHINSKI,                      )
                                              )
      Appellants-Petitioners,                 )
                                              )
                vs.                           )      No. 45A03-1206-TR-296
                                              )
JOSEPH STRAZZANTE and                         )
MONTY STRAZZANTE, CO-TRUSTEES,                )
                                              )
      Appellees-Respondents.                  )



                       APPEAL FROM THE LAKE CIRCUIT COURT
                          The Honorable George C. Paras, Judge
                              Cause No. 45C01-1009-TR-9


                                   August 29, 2013

                            OPINION – FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

       This appeal involves a family dispute between half-siblings—Robert Kutchinski

(“Robert”), Sheila Graves f/k/a Sheila Kutchinski (“Sheila”), John Kutchinski (“John”),

Joseph Strazzante (“Joseph”), and Monty Strazzante (“Monty”)—over the revocable

living trust (“the Trust”) created by their mother, Dorothy Rhoades (“Dorothy”). When

Dorothy initially created the Trust in 2003, she included all her children as beneficiaries.

In July 2010, eleven days before her death, Dorothy amended the Trust and other estate

planning documents to exclude Robert as a beneficiary after Joseph contacted Dorothy’s

attorney regarding changes to be made to the Trust.

       After Dorothy’s death, Robert filed a petition to docket the Trust and to determine

the Trust’s beneficiaries, alleging that Dorothy lacked testamentary capacity and was

under the undue influence of Joseph when she amended the Trust and other estate

planning documents. Joseph and Monty filed a motion for summary judgment, arguing

that there were no genuine issues of material fact regarding testamentary capacity and

undue influence and that they were entitled to judgment as a matter of law. Robert,

Sheila, and John filed a joint summary judgment response, arguing that there were

genuine issues of material fact regarding whether Dorothy was of sound mind and under

undue influence at the time she amended the Trust in July 2010. The trial court granted

the summary judgment motion. Robert now appeals the trial court’s order granting

Joseph and Monty’s motion for summary judgment.1


1
  Robert, alone, commenced the underlying action challenging the July 2010 amendment to the Trust.
Later, Sheila, who was represented by the same attorney as Robert, joined Robert in various pleadings,
including the summary judgment response. Sheila was removed as a beneficiary from the Trust in
                                                  2
          We reverse and remand.

                                                 ISSUES

          1. Whether the trial court’s summary judgment order was a final,
             appealable order.

          2. Whether the trial court erred by granting summary judgment to Joseph
             and Monty on the issues of testamentary capacity and undue influence.

                                                 FACTS

          The facts considered in a light most favorable to Robert, the nonmoving party,

follow. Dorothy had five children as a result of her first two marriages. On June 23,

2003, Dorothy executed the Trust, naming her natural born children—Robert, Sheila,

John, Joseph, and Monty—as beneficiaries of the Trust.2                     Dorothy named her third

husband, Elmer Rhoades (“Elmer”), as trustee and named Joseph and Robert as successor

co-trustees of the Trust.3

          On January 23, 2010, Dorothy was hospitalized with a kidney failure and placed in

the intensive care unit (“ICU”). While Dorothy was in the ICU, Joseph—on his own

initiative—obtained a power of attorney form from the internet and sought to have


February 2010, and there has been no challenge to that amendment. While both Robert and Sheila are
named in the notice of appeal, we will collectively refer to them as “Robert” when discussing arguments
made in this appeal.
   Additionally, John appeared in the case below, joined in Robert and Sheila’s summary judgment
response, and participated in the summary judgment hearing, arguing that the trial court should deny
Joseph and Monty’s motion for summary judgment. John, however, did not join in Robert and Sheila’s
notice of appeal and has not filed an appearance or a brief with this Court. Nevertheless, John is a party
to this appeal. See Ind. Appellate Rule 17(A) (explaining that “[a] party of record in the trial court . . .
shall be a party on appeal.”)
2
 Dorothy did not name her son by marriage, Kenneth Rhoades (“Kenneth”), as a beneficiary of the Trust
and included a provision explaining that failure to provide a distribution to Kenneth was “intentional.”
(App. 18).
3
    Elmer had died on September 29, 2003.
                                                     3
Dorothy sign the power of attorney. On January 25, 2010, a hospital social worker,

Carolyn Davis (“Davis”), was in Dorothy’s room when Joseph tried to have Dorothy sign

the power of attorney form. Davis, believing that Dorothy was confused and not able to

understand what she was signing, prevented Joseph from having Dorothy sign the form.

       The following day, on January 26, 2010, Joseph went back to the hospital and had

Dorothy sign a power of attorney, naming him as the sole attorney-in-fact. Robert

walked into Dorothy’s room and confronted Joseph about the form, but Joseph did not

show Robert the form.

       On January 28, 2010, Dorothy was moved from the ICU to a private room at the

hospital. While Joseph and Robert were in Dorothy’s room, Joseph showed the power of

attorney form to Robert, and they discussed it with Dorothy.         Robert explained to

Dorothy about the power of attorney form, and Dorothy apparently indicated that she

wanted both Robert and Joseph to be joint attorneys-in-fact and to act together.

       Thereafter, Robert contacted attorney Daniel Blaney (“Attorney Blaney”), who

was a partner of Dorothy’s attorney who had retired. Subsequently, Attorney Blaney

drafted an amended power of attorney and met with Dorothy, Robert, and Joseph at the

hospital on February 4, 2010. Attorney Blaney talked to Dorothy about the amended

power of attorney. Dorothy executed the amended power of attorney that named Robert

and Joseph as joint attorneys-in-fact to make financial and personal decisions for her.

The power of attorney became effective upon execution.

       Around that same time, Dorothy also amended the Trust. The amendment to the

Trust was also prepared by Attorney Blaney. Dorothy amended the Trust by naming

                                            4
Joseph and Robert as co-trustees of the Trust. Dorothy also “specifically omitted” Sheila

as a beneficiary of the Trust. (App. 20). The Trust was signed by Dorothy as grantor and

by Robert and Joseph as co-trustees. Additionally, Dorothy amended her beneficiary

designations on her life insurance policies and excluded Sheila as a beneficiary, leaving

the four sons as beneficiaries. Dorothy also amended her will to include a provision that

provided for Sheila and John to each receive $5,000 for mental health care.

      After Dorothy was released from the hospital, she had to get frequent dialysis

treatments at her doctor’s office. Dorothy first lived with Monty from February 25, 2010

to March 18, 2010. While Dorothy lived with Monty, Robert helped take Dorothy to her

dialysis treatments. On March 18, 2010, Robert took Dorothy to her dialysis treatment

and later discovered that Monty had left Dorothy’s belongings on Monty’s front porch.

      From March 18, 2010, to July 1, 2010, Dorothy lived at Robert’s house. While

Dorothy lived at Robert’s house, she had a surgery to change the type of dialysis that she

received. Her dialysis treatments were increased to a daily basis and then done at home

instead of at the doctor’s office. The family was required to receive training to assist

Dorothy with her dialysis. Dorothy’s doctor also had a family meeting with Dorothy’s

children to explain that they needed to assist Robert in administering Dorothy’s dialysis.

While Dorothy lived at Robert’s house, her primary medications were Tramadol and

Xanax.

      On July 1, 2010, Dorothy returned to her own home and was assisted by two

healthcare providers, Wanda Kessler (“Caretaker Kessler”) and Edith Lucas (“Caretaker

Lucas”), while at her home. From July 7 to July 12, 2010, Dorothy was hospitalized with

                                            5
abdominal pain. Upon Dorothy’s discharge from the hospital, she received prescriptions

for Tramadol and Alprazolam and returned to her own home.

       A few days later, Dorothy fell at her house and was again hospitalized. After her

release from the hospital, Dorothy was taking the following medications: Tramadol,

Hydrocodone, Xanax, Furosemide, Prochlorperazine, and Exforge. Around this time,

Dorothy stopped her dialysis, and Caretaker Kessler and Caretaker Lucas stopped

providing healthcare to Dorothy. Monty then hired Anita Ray (“Caretaker Ray”) as

Dorothy’s healthcare provider.

       On July 26, 2010, Joseph went to visit Dorothy. Joseph had not seen Dorothy for

a few months. Two days later, on July 28, 2010, Joseph contacted Attorney Blaney and

told him that Dorothy wanted to amend the Trust, the power of attorney, and her will.

Attorney Blaney prepared amendments to these documents and met with Dorothy at her

house on July 29, 2010. Dorothy amended her power of attorney to remove Robert as an

attorney-in-fact and to name Joseph as her sole attorney-in-fact with power to act for her

in all financial and personal matters.

       In the amendment to the Trust, Dorothy “specifically omitted” Robert as a

beneficiary of the Trust. (App. 22). Dorothy also excluded Sheila. Thus, the only

children that were beneficiaries of Dorothy’s trust were Joseph, Monty, and John.

Dorothy also amended the Trust by removing Robert as a co-trustee and naming Joseph

and Monty as co-trustees. The Trust was signed by Dorothy as grantor and by Joseph

and Monty as co-trustees. That same day, Dorothy also executed change of beneficiary



                                            6
forms for various life insurance policies, excluding Robert as a beneficiary. Additionally,

Dorothy also amended her will, naming Joseph and Monty as co-personal representatives.

          Eleven days after she amended the Trust, on August 9, 2010, Dorothy died. On

September 16, 2010, Robert filed a Petition to Docket Trust and to Determine

Beneficiaries. In his petition, Robert alleged that Dorothy lacked testamentary capacity

and was under the undue influence of Joseph at the time she executed the amendments.

Robert requested a hearing “to determine the validity of the execution of the amendments

to the [Trust]; the powers of attorney, wills and any and all other estate planning

documents[.]” (App. 11).4

          On September 21, 2010, Robert filed a motion for a temporary restraining order,

requesting that Joseph and Monty be enjoined from disposing of the proceeds from two

life insurance annuities—one in the amount of $100,000.00 and the other for

$38,000.00—“due to the fact that the beneficiaries were changed less than ten days prior

to [Dorothy’s] death[.]” (App. 29).5 In the motion, Robert contends that he and Sheila

will suffer irreparable injury if an injunction is not issued.

          Thereafter, the parties entered into a stipulated preliminary injunction and order,

agreeing that the proceeds from the life insurance annuities—of which Joseph, Monty,

and John were beneficiaries—would not be distributed. They also agreed that all parties

were enjoined from disposing of any of Dorothy’s assets or proceeds from the Trust.


4
    There is no information in the record regarding whether Dorothy’s will was ever probated.
5
 Robert’s motion indicates that it has an Exhibit A attached to it, but that exhibit is not included in
Appellant’s Appendix.

                                                      7
        On November 22, 2011, Joseph and Monty filed a motion for summary judgment,

alleging that there were no issues of material fact regarding whether Dorothy was of

unsound mind. Neither Joseph and nor Monty executed an affidavit to include in their

designated evidence; instead, they relied on a deposition of Attorney Blaney. They also

argued that there was no issue of material fact regarding undue influence, relying simply

on their argument that Dorothy was of sound mind.

        Thereafter, John retained an attorney and joined with Robert and Sheila in

responding to Joseph and Monty’s motion for summary judgment. In their summary

judgment response, they argued that there were genuine issues of fact that precluded

summary judgment. They submitted designated evidence, including various affidavits to

show that there was an issue of fact regarding Dorothy’s testamentary capacity,

especially in light of the medications that she was taking around the time that she

amended the Trust, and an issue of fact regarding undue influence.

        On March 22, 2012, the trial court held a summary judgment hearing.6 During the

hearing, John’s attorney and Robert and Sheila’s attorney argued that summary judgment

was not appropriate because there were genuine issues of material fact regarding

testamentary capacity and undue influence. At the end of the hearing, the trial court took

the summary judgment matter under advisement.

        On June 4, 2012, the trial court issued an order granting Joseph and Monty’s

motion for summary judgment. The trial court’s order provided that “[t]here are no

6
   During the hearing, the trial court also heard argument regarding Robert’s show cause petition, which
alleged that Joseph and Monty had violated the trial court’s injunctive order. At the end of the hearing,
the trial court denied Robert’s show cause petition.

                                                   8
material issues of fact herein as to either the capacity of or any undue influence over

Dorothy Rhoades on the date and time of the execution of her estate planning documents”

and that “[t]he Trustees [Joseph and Monty] are entitled to judgment as a matter of law.”

(App. 8). Robert now appeals.

       After the notice of appeal was filed in this case, some procedural motions were

filed and corresponding orders issued. For example, following Joseph and Monty’s filing

of a motion to remove the Trust from the docket, the trial court held a hearing and then

issued an order removing the Trust from the docket and closing the court’s file.

       Additionally, prior to filing an appellate brief, Robert filed with this Court a

motion to stay the proceedings and to enforce the trial court’s orders enjoining Joseph

and Monty from disposing of assets pending this appeal. This Court’s motions panel

granted Robert and Sheila’s stay motion and, pursuant to Indiana Appellate Rule 18, set

an appeal bond in the amount of $25,000.00.

       Finally, after briefing was completed, Joseph and Monty filed a motion to dismiss

this appeal and to vacate the stay because Robert had not paid the appeal bond. This

Court’s motions panel denied Joseph and Monty’s motion. We now address the issues in

this appeal.

                                       DECISION

1.     Jurisdiction

       Before turning to the issue of whether summary judgment was appropriately

granted, we address Joseph and Monty’s cross-appeal argument that our Court lacks

jurisdiction based on their allegation that the trial court’s summary judgment order was

                                            9
not a final judgment. Specifically, they contend that the trial court’s order granting

summary judgment was not a final order because the trial court did not close the trust

case and remove the case from the trust docket when it granted summary judgment.

       On the other hand, Robert and Sheila contend that the trial court’s order granting

summary judgment to Joseph and Monty was a final judgment because it completely

disposed of Robert’s petition to docket the Trust and challenge thereto.

       This Court has jurisdiction in all appeals from final judgments. Ind. Appellate

Rule 5(A). A “final judgment” is one which “disposes of all claims as to all parties[.]”

App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct. App.

2002) (explaining that a final judgment is one that “disposes of all issues as to all parties,

to the full extent of the court to dispose of the same, and puts an end to the particular case

as to all of such parties and all of such issues” and “reserves no further question or

direction for future determination” (citations and internal quotations omitted)). For an

order to be a final judgment under Appellate Rule 2(H)(1), the order “must dispose of all

issues as to all parties, ending the particular case and leaving nothing for future

determination.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (citing Georgos v.

Jackson, 790 N.E.2d 448, 451 (Ind. 2003), reh’g denied).

       To support their argument that trial court’s summary judgment order was not a

final judgment, Joseph and Monty rely on In re Estate of Botkins, 970 N.E.2d 164 (Ind.

Ct. App. 2012). In the Botkins case, one of the parties filed a motion to set aside a

settlement agreement in an estate case that had already been opened. Id. at 165-66. The

trial court denied the motion and then certified its order for interlocutory appeal. Id.

                                             10
Our Court, however, denied the party’s motion to accept jurisdiction over the

interlocutory order. Id. Thereafter, the trial court entered an order “purporting” to make

the interlocutory order “final and appealable.” Id.

       When the party then returned to our Court to appeal the order, we explained that

the trial court’s order was not a final judgment under Appellate Rule 2(H)(1) because it

did not put an end to the estate case. Id. We discussed the fact that the estate case

remained open and that “orders issued by a probate court are not final until the estate is

closed.” Id. at 167 (citing Dawson v. Estate of Ott, 796 N.E.2d 1190, 1194 n.2 (Ind. Ct.

App. 2003)).7

       Unlike Botkins, where the appealed order disposed of a motion within an already

existing estate case but did not end the case or leave nothing for further determination,

here, the trial court’s order from this trust case was a final judgment. Robert commenced

the underlying trust proceeding by filing a petition to docket the Trust and to determine

beneficiaries. In his petition, Robert alleged that Dorothy had executed the July 2010

amendment to the Trust “under duress and the undue influence of Joseph” and that her

“medical condition” rendered her “unaware and unable to determine the contents of said

amendments at the time she executed [the] same.” (App. 11). Joseph and Monty filed a

summary judgment motion, specifically arguing that there were no genuine issues of fact

regarding testamentary capacity and undue influence. On June 4, 2012, the trial court

issued an order granting summary judgment, determining that “[t]here were no material

issues of fact herein as to either the capacity of or any undue influence over Dorothy
7
  We ultimately dismissed the Botkins appeal because the trial court’s order did not use the “magic
language” of Trial Rule 54(B).
                                                11
Rhoades on the date and time of the execution of her estate planning documents” and that

Joseph and Monty were “entitled to judgment as a matter of law.” (App. 8). Thereafter,

on June 14, 2012, Joseph and Monty filed a motion to remove the Trust from the docket.

The notice of appeal was then filed on June 27, 2012. After holding a hearing on Joseph

and Monty’s motion, the trial court, on September 13, 2012, issued an order removing the

Trust from the docket and closing the court’s file, noting that there were “no pending

issues” in the case. (App. 382).

       Robert is appealing the grant of summary judgment, which is a final judgment

because it disposed of all claims as to all parties. See Ind. Appellate Rule 2(H)(1). See

also In re Guardianship of Phillips, 926 N.E.2d 1103, 1106 (Ind. Ct. App. 2010) (holding

that the trial court’s judgment was a final judgment and explaining that it was

“immaterial” that the guardianship case remained open where no other issues raised in

the pleadings were at issue); Keck v. Walker, 922 N.E.2d 94, 99 (Ind. Ct. App. 2010)

(holding that trial court’s order was a final, appealable judgment where it had the effect

of disposing of all issues as to all parties). The only issues raised in Robert’s petition to

docket the Trust were disposed of by the trial court’s grant of summary judgment to

Joseph and Monty, and it is immaterial that the trial court did not remove the trust case

from the docket when it entered the summary judgment order. Because the trial court’s

summary judgment order is a final judgment, we will proceed to our appellate review of

the trial court’s order.

2.     Summary Judgment



                                             12
       Robert argues that the trial court erred by granting Joseph and Monty’s motion for

summary judgment on his claims that Dorothy lacked testamentary capacity and was

under undue influence at the time she amended the Trust and other estate documents. We

will review each issue in turn.

       When reviewing a trial court’s order granting summary judgment, we apply the

same standard as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930

(Ind. 2008). Summary judgment is appropriate only where the designated evidence

shows “that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its

resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact

is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed

facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761

(Ind. 2009) (internal citations omitted).

       “[T]he party seeking summary judgment has the initial burden of proving the

absence of a genuine issue of material fact as to an outcome-determinative issue. Only

then must the non-movant come forward with contrary evidence demonstrating the

existence of genuine factual issues that should be resolved at trial.” Kroger Co. v.

Plonski, 930 N.E.2d 1, 9 (Ind. 2010) (citing Jarboe v. Landmark Cmty. Newspapers of

Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994), reh’g denied). Indeed, when the defendant is

the moving party, the defendant must show that the undisputed facts negate at least one

element of the plaintiff’s cause of action or that the defendant has a factually



                                              13
unchallenged affirmative defense that bars the plaintiff’s claim.           Dible v. City of

Lafayette, 713 N.E.2d 269, 272 (Ind. 1999).

       Summary judgment “should not be used as an abbreviated trial, even where the

proof is difficult or where the court may believe that the non-moving party will not

succeed at trial.” Hudson v. Davis, 797 N.E.2d 277, 287 (Ind. Ct. App. 2003), reh’g

denied, trans. denied. See also Carrell v. Ellingwood, 423 N.E.2d 630, 636 (Ind. Ct.

App. 1981) (explaining that even if a trial court believes that a party moving for summary

judgment will prevail at trial or believes that the likelihood of the nonmoving party’s

recovery is improbable, “such are no bases for summary judgment”).                 Instead, in

determining whether summary judgment is appropriate, we construe all facts and

reasonable inferences in favor of the nonmoving party. Mangold ex rel. Mangold v. Ind.

Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). We must carefully review a

decision on summary judgment to ensure a party is not improperly denied his day in

court. Id. at 974.

       A. Testamentary Capacity

       Robert first argues that the trial court erred by granting summary judgment to

Joseph and Monty on his claim that Dorothy lacked testamentary capacity at the time she

amended the Trust.

       “The capacity of a settlor that is required to . . . amend . . . a revocable trust is the

same as the capacity of a testator that is required to make a will.” Ind. Code § 30-4-2-

10(b). Every person is presumed to be of sound mind to execute a will. Gast v. Hall, 858

N.E.2d 154, 165 (Ind. Ct. App. 2006) (citing Hays v. Harmon, 809 N.E.2d 460, 464 (Ind.

                                              14
Ct. App. 2004), trans. denied), reh’g denied, trans. denied. To rebut this presumption, a

party must show that the testator, at the time of executing his will, lacks the mental

capacity to know: “(1) the extent and value of [her] property; (2) those who are the

natural objects of [her] bounty; and (3) their deserts, with respect to their treatment of and

conduct towards [her]. Id. It is the testator’s mental capacity or soundness of mind at the

time she executes the document at issue that is controlling. Id. However, evidence of the

testator’s mental condition before the date of execution is admissible as it relates to the

testator’s mental state at the time she executed the document at issue. Id.

       In moving for summary judgment on this issue, Joseph and Monty designated the

following evidence: Robert’s initial petition challenging the Trust; the Trust and its two

amendments; other documents (including the two powers of attorney executed in 2010

and the July 2010 will); and portions of Attorney Blaney’s deposition in which he

generally concluded that Dorothy was of sound mind but also stated that he was unaware

if Dorothy was taking any medications at the time she amended the Trust.

       Robert contends that Attorney Blaney’s deposition is not enough to entitle Joseph

and Monty to summary judgment and that “there are ample questions of fact as to

Dorothy Rhoades[’s] testamentary capacity when she executed the amendments to her

estate plan documents on July 29, 2010.” (Robert’s Br. at 17). Specifically, he contends

that there is a genuine issue of material fact regarding Dorothy’s capacity given the side

effects of the medications she was taking at the time she made the amendments and given

the surrounding facts leading up to her amendments, including the cessation of her

dialysis.

                                             15
      We agree that summary judgment was inappropriate in this case as Robert’s

designated evidence establishes that there is a genuine issue of material fact in regard to

Dorothy’s testamentary capacity. In his designated evidence, Robert included various

affidavits regarding Dorothy’s capacity and medication use. Among those affidavits was

an affidavit from John, who stated that Dorothy was taking Tramadol, Hydrocodone,

Xanax, thyroid medication, and blood pressure medication and that he had seen Caretaker

Ray give Dorothy morphine three or four times.

      Robert also included an affidavit from a pharmacist, who explained the side

effects of the medications that Dorothy was taking between July 12, 2010 and August 9,

2010. Attached to the pharmacist’s affidavit was a printout from Dorothy’s pharmacy

showing that between July 20 and 26, 2010, Dorothy filled prescriptions for

Hydrocodone, Furosemide, Prochlorperazine, and Exforge. The pharmacist stated that

“most of the medications” that Dorothy was taking “caused drowsiness, dizziness, light-

headedness and/or blurred vision.” (App. 309). The pharmacist also stated that the “side

effects taken in combination with each other would lead one to believe that [Dorothy]

was not in her right mind due to the amounts and variety of medications that she was on

from July 12, 2010 through August 9, 2010.” (App. 309). Finally, the pharmacist opined

that “it is more probable than not, within a reasonable degree of medical certainty that

[Dorothy] was not coherent enough to make rational decisions as to her estate planning

matters, due to the medications she was consuming.” (App. 310).

      Additionally, Robert included an affidavit from Caretaker Lucas, who stated that

she had known Dorothy for eleven years before her death. She also stated that she helped

                                            16
to care for Dorothy from March 18 to July 12, 2010, and that she was familiar with the

medications that Dorothy was taking. Caretaker Lucas also stated that she visited with

Dorothy two or three times per week from July 12 to July 31, 2010 and that “[d]uring

those visits, [she] noticed that [Dorothy] was under the affects [sic] of her medication

which resulted in her inability to fully comprehend what was fully happening to her.”

(App. 314).

       The state of Dorothy’s mind at the time she amended the Trust and other estate

documents involves a fact-specific analysis that does not lend itself to summary

judgment. Construing the facts and reasonable inferences in favor of Robert as the

nonmoving party, we conclude that there is a genuine issue of material fact regarding

whether Dorothy was of sound mind at the time she executed the amendments at issue.

Accordingly, we conclude that the issue of testamentary capacity is a question of fact for

a jury to determine and that the trial court erred by granting summary judgment on this

issue. See, e.g., Gast, 858 N.E.2d at 165-66 (reversing trial court’s grant of summary

judgment on issue of testamentary capacity); Estate of Verdi ex rel. Verdi v. Toland, 733

N.E.2d 25, 28 (Ind. Ct. App. 2000) (reversing the trial court’s grant of summary

judgment where there was an issue of material fact regarding soundness of mind), reh’g

denied; Carrell, 423 N.E.2d at 635 (explaining that issues regarding a person’s state of

mind are more appropriately a question of fact for a trier of fact).

       B. Undue Influence




                                             17
       Robert also argues that the trial court erred by granting summary judgment to

Joseph and Monty on his claim that Dorothy was under the undue influence of Joseph at

the time she amended the Trust.

       Undue influence is “‘the exercise of sufficient control over the person, the validity

of whose act is brought into question, to destroy his free agency and constrain him to do

what he would not have done if such control had not been exercised.’” Gast, 858 N.E.2d

at 166 (quoting In re Estate of Wade, 768 N.E.2d 957, 962 (Ind. Ct. App. 2002), trans.

denied). Undue influence is an “intangible thing that only in the rarest instances is

susceptible of what may be termed direct or positive proof.” Gast, 858 N.E.2d at 166.

That difficulty is enhanced by the fact that one who seeks to use undue influence does so

in privacy.   Id.   Accordingly, “undue influence may be proven by circumstantial

evidence, and the only positive and direct proof required is of facts and circumstances

from which undue influence reasonably may be inferred.”               Id.   The following

circumstances tending to support an inference of undue influence may be properly

considered by our Court: (1) the character of the beneficiary; (2) any interest or motive

the beneficiary might have to unduly influence the testator; and (3) the facts and

surrounding circumstances that might have given the beneficiary an opportunity to

exercise such influence. Id. “Undue influence is essentially a question of fact that should

rarely be disposed of via summary judgment.” Id.

       Under Indiana law, a confidential relationship sufficient to support an undue

influence claim may arise as either a matter of law (“confidential relationships as a matter

of law”) or under the particular facts of a case (“confidential relationships in fact”).

                                            18
Carlson v. Warren, 878 N.E.2d 844, 851 & 851 n.3 (Ind. Ct. App. 2007). Among those

confidential relationships as a matter of law are the relationships between a parent and

child8 and between a principal and agent. Id.; see also Supervised Estate of Allender v.

Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005), reh’g denied, trans. denied. These

relationships raise “a presumption of trust and confidence as to the subordinate party on

the one side and a corresponding influence as to the dominant party on the other.”

Allender, 833 N.E.2d at 533. The law will impose a presumption that a transaction was

the result of undue influence where the plaintiff’s evidence shows that: (a) there was

such a relationship; and (b) the dominant party benefits from a questioned transaction.

Id.; see also Carlson, 878 N.E.2d at 851. The burden then shifts to the dominant party to

rebut the presumption by providing “‘clear and convincing evidence’ ” that the dominant

party “‘acted in good faith, did not take advantage of [the] position of trust, and that the

transaction was fair and equitable.’”            Carlson, 878 N.E.2d at 851             (quoting In re

Guardianship of Knepper, 856 N.E.2d 150, 154 (Ind. Ct. App. 2006), clarified on reh’g,

trans. denied); see also Allender, 833 N.E.2d at 533 (explaining that the presumption of

undue influence may be rebutted if dominant party establishes “clear and unequivocal

proof that the questioned transaction was made at arm’s length and thus valid”).

        As explained above, as the party moving for summary judgment, Joseph and

Monty had the burden of designating evidence showing that there were no genuine issues


8
  In a parent-child relationship, the parent is generally the dominant party, but a child may be determined
to be the dominant party by virtue of being a caretaker for the parent. See, e.g., See Allender, 833 N.E.2d
at 533-34. However, “[t]he question of which party has attained the position of the dominant party, under
the evidence, is a question for the trier of fact.” Barkwill v. Cornelia H. Barkwill Revocable Trust, 902
N.E.2d 836, 839-40 (Ind. Ct. App. 2009), trans. denied.
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of material fact regarding whether Dorothy was under undue influence at the time she

amended the Trust and other documents in July 2010. See Kroger, 930 N.E.2d at 9;

Jarboe, 644 N.E.2d at 123. In an attempt to meet their burden to show the absence of a

material fact on this issue, Joseph and Monty merely relied on their argument regarding

testamentary capacity. In other words, they argued there was no undue influence because

Dorothy was of sound mind.

       Because we have determined that there is an issue of material fact regarding

testamentary capacity, we conclude that summary judgment was also not appropriate on

the issue of undue influence.   Here, Robert filed this action challenging the July 2010

amendment to the Trust and alleging that Joseph had unduly influenced Dorothy to

amend the Trust. The undisputed evidence shows that Joseph is a child of Dorothy and

that he benefitted from the amendment of the Trust.         Additionally, Joseph was an

attorney-in-fact for Dorothy. Joseph and Monty have not met their initial burden on

summary judgment and have not shown that there is an absence of an issue of material

fact regarding undue influence. Indeed, the question remains as to whether Joseph was in

a dominant position in the parent-child relationship such that a presumption of undue

influence would be imposed. Accordingly, we reverse the trial court’s grant of summary

judgment and remand for further proceedings. See, e.g., Gast, 858 N.E.2d at 166-67

(explaining that “[u]ndue influence is essentially a question of fact that should rarely be

disposed of via summary judgment” and reversing trial court’s grant of summary

judgment on undue influence); Estate of Verdi, 733 N.E.2d at 29 (reversing the trial



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court’s grant of summary judgment where there was an issue of material fact regarding

undue influence).

      Reversed and remanded.

KIRSCH, J., and VAIDIK, J., concur.




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