                                                                          FILED
                                                                      Sep 20 2017, 5:55 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                                           Hunt, Hassler, Kondras & Miller LLP
Bingham Greenebaum Doll LLP                               Terre Haute, Indiana
Indianapolis, Indiana

Gerald H. McGlone
McGlone Law
Terre Haute, Indiana


                                              IN THE
       COURT OF APPEALS OF INDIANA

In the Matter of the Revocable                            September 20, 2017
Trust Agreement created by the                            Court of Appeals Case No.
Settlor, Anil Kumar Sarkar                                84A01-1701-TR-67
Dipa Sarkar,                                              Appeal from the Vigo Superior Court
Appellant-Petitioner,                                     The Honorable David R. Bolk, Judge
                                                          Trial Court Cause No.
        v.                                                84D03-1503-TR-1438

Anuradha (“Mili”) Sarkar
Naugle,
Appellee-Respondent




Crone, Judge.




Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                   Page 1 of 22
                                              Case Summary
[1]   Eighty-six-year-old Dipa Sarkar, the surviving spouse of Anil Kumar Sarkar,

      appeals the trial court’s entry of summary judgment in favor of Anuradha

      Sarkar Naugle (“Mili”) as successor trustee of the Anil Kumar Sarkar

      Revocable Trust Agreement dated August 23, 1993 (“the Trust”). In short, at

      the time of Anil’s death, his probate estate had minimal assets because the

      lion’s share of his assets, totaling close to $2,000,000, had been placed in or

      diverted to the Trust. However, the Trust provided for Dipa, Anil’s wife of

      fifty-six years, to receive only $50,000 or roughly 2.5% of his total assets.

      Similarly, Anil’s will (“the Will”) made little provision for Dipa, bequeathing

      her only his clothes and tangible personal property while providing that the

      remaining assets, if any, be transferred to the Trust.


[2]   Dipa filed a petition to docket the Trust, which made numerous allegations

      regarding the validity of the Trust as well as questions regarding the propriety of

      certain assets being diverted to the Trust (rather than to Dipa personally or to

      the probate estate) in an attempt to disinherit Dipa. Thereafter, while that

      proceeding was pending, Dipa filed an election to take against the Will. Mili

      subsequently moved for summary judgment on Dipa’s petition to docket the

      Trust, but she did not address Dipa’s election to take against the Will. Dipa

      then filed a motion for leave to file a second amended petition to docket the

      Trust, bringing her election to take against the Will to the trial court’s attention,

      and alleging more specifically her claims regarding the validity of the Trust.

      The trial court denied Dipa’s motion to amend, simply concluding that it would

      Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 2 of 22
      be prejudicial to Mili to allow Dipa to amend her petition. The trial court made

      no statement as to the timeliness of Dipa’s election. Thereafter, the trial court

      entered summary judgment in favor of Mili on the narrow issue of whether the

      Trust was the proper beneficiary of a certain asset, and further declaring that

      such order disposed of all outstanding issues between the parties. The trial

      court failed to address Dipa’s election to take against the Will or the timeliness

      thereof.


[3]   On appeal, Dipa asserts that her election to take against the Will was timely,

      and because it is a statutory right of a surviving spouse, the trial court erred as a

      matter of law in failing to honor the election. We agree and conclude that: (1)

      Dipa made a timely election to take against the Will; (2) the trial court abused

      its discretion in denying Dipa’s motion to amend her petition to docket the

      Trust; and (3) genuine issues of material fact remain, precluding summary

      judgment. Accordingly, we affirm in part, reverse in part, and remand for

      further proceedings.


                                    Facts and Procedural History1
[4]   Anil and Dipa Sarkar were married in 1958, and remained married for fifty-six

      years until Anil’s death on February 24, 2015. They had one child, a daughter

      named Rumu. Anil had two children from a brief previous marriage, daughter



      1
        Dipa’s statement of facts section of her brief is overly cumbersome and contains numerous facts that are
      meant to inflame our passions but are irrelevant to the issues on appeal. We remind Dipa’s counsel that the
      statements of facts section is to be limited to “the facts relevant to the issues presented.” Ind. Appellate Rule
      46(A)(6) (emphasis added).

      Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                           Page 3 of 22
      Mili, and son Ashoke. During their marriage, Anil and Dipa, who were both

      medical doctors, operated a private pathology practice in Terre Haute called

      Sarkar Medical Corporation.


[5]   In 1993, Anil created the Trust, which was restated in its entirety on March 31,

      1997. The stated purpose of the Trust was “a simplified means of

      accomplishing both lifetime and death transfers” of Anil’s assets. Appellant’s

      App. Vol. 2 at 27. Anil amended the Trust seven times, with the seventh and

      final trust amendment occurring on March 14, 2014. From the original form

      through to 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.” Id. at 35. 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 his

      brother 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 then

      deceased, to her descendants per stirpes. Id. at 46.


[6]   The Trust 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

      Morgan Stanley Trust Account”). During his later years, Anil had his monthly

      social security payments diverted into the Morgan Stanley Trust Account. The

      Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 4 of 22
      second account that funded the Trust was an Individual Retirement Account

      valued at $1,007,614 (“the IRA”). In December of 2003, Anil designated the

      Trust as the sole beneficiary of the IRA.


[7]   On January 20, 2014, Anil executed the Will. In the Will, Anil appointed

      Rumu as personal representative and directed that his body be disposed of

      without ceremony of any kind. He directed that his probate estate should be

      used to pay all 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 [the Will] or otherwise” without reimbursement from any person. Id. at

      66. Anil made no provision for Dipa or his children in the Will other than

      stating that his clothing and tangible personal property would go to Dipa, if she

      survived him by thirty days; otherwise, the property would be transferred to the

      Trust. The Will provided that anything left in his net residuary estate would be

      transferred to the Trust.


[8]   Shortly after Anil’s death, on March 10, 2015, Rumu filed a petition to probate

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

      personal representative the following day. Also on March 10, Dipa filed a

      “Petition to Docket Trust and for Relief.” Id. at 18. Dipa averred that: (1) the

      Will had been admitted to probate and provided that Anil’s residuary estate be

      distributed to the Trust; (2) at the time of Anil’s death, the couple had been

      married for fifty-six years; (3) on the date of Anil’s death, nearly all of his assets

      were owned by the Trust; (4) the Trust was created in 1993, restated in 1997,

      Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 5 of 22
      and amended seven times; (5) one of the Trust assets consists of an IRA and

      because Dipa signed spousal consent regarding the beneficiary of the IRA under

      duress, the IRA should be removed from the Trust; (6) prior to his death, Anil

      diverted his social security payments to the Trust, which has left the probate

      estate with no assets.2 Based upon these facts, Dipa requested for the Trust to

      be docketed by the probate court and for her petition to be heard. She further

      requested the court to freeze the assets of the Trust and to remove the IRA from

      the Trust. The trial court set a hearing on Dipa’s petition for April 24, 2015.


[9]   On March 20, 2015, Dipa filed a motion to remove Mili as trustee or require

      her to post a bond to ensure that she performed her duty to pay the estate’s

      unpaid claims and expenses. Dipa asserted that Anil’s probate estate was

      insolvent, and that the Trust was liable to pay the estate’s unpaid claims

      including funeral expenses, costs of administration, and Dipa’s surviving

      spouses’s allowance. Mili responded with a request for continuance of the

      April 24 hearing date. Following a telephonic hearing on April 21, 2015, the

      trial court entered an order docketing the Trust and continuing the April 24

      evidentiary hearing. The court ordered that the IRA assets be frozen and not

      distributed to the Trust, and that a pretrial conference (rather than an

      evidentiary hearing) be held on April 24 to clarify the issues. The trial court’s

      order did not address Dipa’s request to freeze the other assets of the Trust.




      2
       The record indicates that Dipa corrected a slight error and filed her first amended petition to docket the
      Trust on March 13, 2015. The first amended petition contains the same averments as the original.

      Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                        Page 6 of 22
[10]   On April 24, 2015, Dipa again filed a motion requesting that, in addition to the

       IRA, the Trust assets be frozen until the time for filing claims against Anil’s

       estate had expired. Dipa sought to ensure that the Trust retained sufficient

       assets to pay the estate’s pending claims, costs of administration, and surviving

       spouse’s allowance. On that same date, the trial court held an unrecorded

       pretrial conference. Regarding Dipa’s motion to freeze the Trust assets, counsel

       for both parties agreed to a distribution of 85% of the non-IRA Trust assets to

       the Trust’s beneficiaries. The remaining funds were not to be distributed “until

       such time as the Court determines which, if any, allowable claims and expenses

       of [the estate] shall be paid out of the Trust’s assets pursuant to applicable

       Indiana law.” Id. at 119. Dipa received $42,500 from the Trust.


[11]   On May 29, 2015, Dipa filed a petition to collect her surviving spouse’s

       statutory allowance from Anil’s probate estate pursuant to Indiana Code

       Section 29-1-4-1. Dipa alleged that the value of the estate was zero and thus the

       transferees of Anil’s nonprobate property (the Trust and its beneficiaries) were

       responsible to pay her claim. Mili, as trustee, objected to Dipa’s petition. The

       parties disagreed on numerous issues, including who should pay Anil’s funeral

       expenses and whether the Trust would be entitled to a setoff against Dipa’s

       spousal allowance for Dipa’s distribution as a beneficiary under the Trust.


[12]   On June 16, 2015, Rumu’s counsel filed a report advising the trial court that he

       had received a check for $64,569.58 from Terre Haute Savings Bank. He

       reported that this amount was the balance of two bank accounts Anil held at the

       bank. Counsel stated that he had known about the accounts but mistakenly

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 7 of 22
       believed that they were Trust assets rather than estate assets, thus causing him

       to believe that the estate was insolvent. Because the estate was not insolvent,

       on that same date, Dipa filed her election to take against the Will pursuant to

       Indiana Code Section 29-1-3-1.


[13]   Three months later, Mili filed a motion for summary judgment on Dipa’s

       petition to docket the Trust. Mili’s motion addressed only whether Dipa’s

       consent was necessary to effectuate Anil’s designation of the Trust as

       beneficiary of his IRA. Mili argued that there was no genuine issue of material

       fact that Dipa’s consent was not required, and therefore Dipa’s claim that she

       signed the consent under duress was irrelevant. Mili’s summary judgment

       motion did not address Dipa’s prior-filed election to take against the Will.


[14]   Thereafter, Dipa’s counsel filed a motion to withdraw and new counsel entered

       an appearance on October 1, 2015. Dipa’s new counsel moved for, and was

       granted, continuances regarding the trial date, discovery cutoff, and the time for

       response to Mili’s summary judgment motion. On December 18, 2015, Dipa

       filed a motion for leave to file a second amended petition3 to docket the Trust

       pursuant to Indiana Trial Rule 15(A). The second amended petition brought

       Dipa’s prior-filed election to take against the Will to the trial court’s attention,

       and also alleged more specifically her claim regarding the validity of the Trust

       and her request that the Trust assets be included in the probate estate for the




       3
           See supra footnote 1.

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 8 of 22
       purpose of calculating her elective share. Dipa’s motion to amend noted that

       no prejudice would result to either party from the granting of the petition.


[15]   Mili objected to the proposed amendment, arguing that it was futile because

       Dipa’s election against the Will was untimely pursuant to Indiana Code Section

       29-1-3-2(a), in that it was filed more than three months after the date of the

       order admitting the Will to probate. Dipa responded by arguing that her

       proposed amendment was not futile as her election was timely pursuant to

       Indiana Code Section 29-1-3-2(b), because at the time the election was filed,

       litigation was pending to determine a matter of law or fact which would affect

       the amount of Dipa’s elective share.


[16]   On July 13, 2016, the trial court entered its order denying Dipa’s motion to

       amend, and instructing Dipa to respond to Mili’s summary judgment motion

       regarding the narrow issue of the validity of the IRA beneficiary designation.

       In its order, the trial court mentioned Dipa’s election to take against the Will,

       but made no finding regarding the timeliness or untimeliness thereof. Instead,

       the trial court determined that allowing Dipa to “now assert[] a claim for

       spousal rights pursuant to IC § 29-1-3-1 … is unduly prejudicial ….” Id. at 17.

       Dipa filed a motion to reconsider which was also subsequently denied by the

       trial court. After her request to certify the order for interlocutory appeal was

       denied by the trial court, Dipa responded to Mili’s motion for summary




       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 9 of 22
       judgment, focusing on her election to take against the Will and claiming a right

       to recover her elective share from the Trust assets.4


[17]   On December 16, 2016, the trial court entered summary judgment in favor of

       Mili concluding that the Trust was the proper beneficiary of the IRA. The trial

       court did not address Dipa’s election to take against the Will. The court

       declared that its entry of summary judgment resolved “all outstanding issues”

       between the parties, and to the extent any unresolved “minor issues” remained,

       there was no just reason for delay and the court’s order constituted a final

       judgment. Id. at 14.


[18]   On January 9, 2017, Dipa filed a renewed election to take against the Will

       stating that a final judgment on all pending litigation was entered on December

       16, 2015, and that her renewed election was filed within thirty days of that

       judgment pursuant to Indiana Code Section 29-1-3-2(b). Mili filed a motion to

       strike the renewed election claiming it was untimely. The trial court granted

       Mili’s motion, concluding that the renewed election was “redundant and of no

       effect.” Appellant’s App. Vol. 6 at 31. This appeal ensued.


                                       Discussion and Decision
[19]   Dipa appeals the trial court’s entry of summary judgment.




       4
        Dipa filed a cross-motion for summary judgment on October 14, 2016. However, the trial court
       subsequently struck Dipa’s motion as untimely and she does not challenge that conclusion on appeal.

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                   Page 10 of 22
               We review such rulings de novo. Pursuant to Indiana Trial Rule
               56(C), a summary judgment movant must make a prima facie
               showing that there are no genuine issues of material fact and that
               it is entitled to judgment as a matter of law. If the movant
               satisfies this burden, the nonmoving party may not rest on its
               pleadings, but must designate specific facts demonstrating the
               existence of a genuine issue for trial. A “genuine issue” is one
               upon which the parties proffer differing accounts of the truth, or
               as to which conflicting inferences may be drawn from the parties’
               consistent accounts; a “material fact” is one that affects the
               outcome of the case. We must construe all evidence and resolve
               all doubts in favor of the non-moving party, so as to avoid
               improperly denying that party’s day in court. Summary judgment
               is not a summary trial, and it is inappropriate merely because the
               nonmoving party appears unlikely to prevail at trial. The party
               that lost in the trial court has the burden of persuading the
               appellate court that the trial court erred.


       Morris v. Crain, 71 N.E.3d 871, 879 (Ind. Ct. App. 2017) (quoting Bah v. Mac’s

       Convenience Stores, LLC, 37 N.E.2d 539, 546 (Ind. Ct. App. 2015) (citations and

       some quotation marks omitted), trans denied (2016)). In addition, upon

       appellate review of summary judgment, questions of statutory interpretation are

       questions of law, which are reviewed on a de novo basis by appellate courts.

       Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind. 2014).


           Section 1 – Dipa made a timely election against the Will.
[20]   In entering summary judgment in favor of Mili, the trial court ruled on the

       narrow issue of whether the Trust, rather than Dipa personally, was the proper

       beneficiary of the IRA. We do not disagree with the trial court’s determination

       of that narrow question, and we affirm partial summary judgment on that


       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 11 of 22
       issue.5 However, the trial court failed to acknowledge or address Dipa’s

       invocation of her right to take her elective share of Anil’s estate, and the effect

       that election has, or might have, on the assets of the Trust. Dipa asserts that the

       trial court erred as a matter of law in claiming to have resolved “all outstanding

       issues” between the parties, but failing to honor her election. Appellant’s App.

       Vol 2 at 14. Mili responds that the trial court properly did so because Dipa’s

       election to take against the Will was not timely filed and therefore was invalid.


[21]   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. 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, thus ensuring a certain degree of future

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

       2002) (citing Ind. Code §§ 29-1-4-1 and 29-1-3-1). An election to take against a

       will is best described as a “right to take a statutory share of the deceased

       spouse’s real and personal property.” Dunnewind v. Cook, 697 N.E.2d 485, 488

       (Ind. Ct. App. 1998), trans. denied. Indeed, Indiana Code Section 29-1-3-1(a)

       provides in pertinent part:


                  When a married individual dies testate as to any part of the
                  individual’s estate, the surviving spouse is entitled to take against



       5
           Dipa does not directly challenge the trial court’s determination of this narrow issue.

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                  Page 12 of 22
        the will under the limitations and conditions stated in this
        chapter. The surviving spouse, upon electing to take against the
        will, is entitled to one-half (½) of the net personal and real estate
        of the testator. ….


        In determining the net estate of a deceased spouse for the purpose
        of computing the amount due the surviving spouse electing to
        take against the will, the court shall consider only such property
        as would have passed under the laws of descent and distribution.


An election to take the statutory share shall be in writing, signed and

acknowledged by the surviving spouse, and shall be filed in the office of the

clerk of the court. Ind. Code § 29-1-3-3(a).6 Regarding the time limitation for

filing such election, our legislature has fixed the time in which a surviving

spouse may elect to take against a will as follows:

        (a) Except as provided in subsection (b), the election by a
        surviving spouse to take the share hereinbefore provided must be
        made not later than three (3) months after the date of the order
        admitting to probate the will against which the election is made.


        (b) If, at the expiration of such period for making the election,
        litigation is pending to test the validity or determine the effect or
        construction of the will or to determine the existence of issue
        surviving the deceased, or to determine any other matter of law or fact
        which would affect the amount of the share to be received by the surviving
        spouse, the right of such surviving spouse to make an election




6
 Mili challenges only the timeliness of Dipa’s election. She makes no claim that the form or substance of
Dipa’s election was somehow improper. See Ind. Code § 29-1-3-3(a) (providing form of election to take
against will, including required acknowledgment, and directing clerk how to record same).

Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                    Page 13 of 22
                shall not be barred until the expiration of thirty (30) days after the
                final determination of the litigation.


       Ind. Code § 29-1-3-2 (emphasis added). This section extended the time

       permitted under the previous probate code in order “to give the surviving

       spouse an opportunity to determine the value of the estate before exercising his

       [or her] right of election.” See id. (Indiana Probate Code Study Commission

       1953 cmts. § 302).7


[22]   The parties here agree that Dipa’s election to take against the Will, initially filed

       on June 16, 2015, was filed five days after the expiration of the three-month

       election period pursuant to Indiana Code Section 29-1-3-2(a). They disagree,

       however, as to whether the election was timely filed pursuant to what may

       properly be characterized as the saving provision in Indiana Code 29-1-3-2(b).

       Under the facts presented, we think there is no question that Dipa’s invocation

       of her statutory right was timely pursuant to subsection (b). This is because, as

       of June 11, 2015, there was litigation pending to determine matters of law or

       fact which would affect the amount of the share of Anil’s estate to be received

       by Dipa.




       7
        Our supreme court has noted that in 1953, based upon the work of the Indiana Probate Code Study
       Commission and guided by the American Bar Association’s Model Probate Code, our General Assembly
       enacted “our state’s modern Probate Code, ‘the first major modification of Indiana law relating to the
       administration of decedents’ estates in more than half a century.’” Markey v. Estate of Markey, 38 N.E.3d 1003,
       1007 (Ind. 2015) (quoting Possession and Control of Estate Property During Administration: Indiana Probate Code
       Section 1301, 29 IND. L. J. 251, 252 (1954)).

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                      Page 14 of 22
[23]   Specifically, despite having entered into an agreed order disposing of some

       issues raised by Dipa’s original petition to docket the Trust, the parties were still

       embroiled in litigation disputing the Trust’s obligations to pay Anil’s funeral

       expenses as well as Dipa’s $25,000 surviving spouse’s allowance under the Will.

       Questions remained as to whether Anil’s tangible personal property that was

       left to Dipa as part of the probate estate, and the value of which was unclear,

       would be used to satisfy the estate’s expenses in the event it was determined

       that the Trust was not so obligated. Indeed, not only did the parties dispute the

       Trust’s obligations to the estate, but Mili also challenged the estate’s

       responsibility in the first place to pay some of the expenses based upon an

       alleged breach of fiduciary duty by Rumu as personal representative.

       Moreover, in addition to the IRA, a portion of the Trust’s non-IRA assets

       remained frozen at Dipa’s request, with the ultimate fate of those assets

       unknown as of June 11, 2015. These disputes undeniably could and would

       affect the value of the net probate estate and the amount of the elective share to

       be received by Dipa.


[24]   Mili asserts that none of the matters subject to the Trust litigation would have

       affected Dipa’s elective share as contemplated by subsection (b) because, as of

       June 11, 2015, the parties believed that the probate estate was essentially

       insolvent. We disagree. First, as stated above, the final value of the net probate

       estate had yet to be determined due to the outstanding issues that involved, at

       least to some extent, the ample assets of the Trust. Second, despite the parties’

       belief, the probate estate was, in fact, not insolvent, as the later discovered funds


       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 15 of 22
       in two bank accounts titled in Anil’s name alone became part of the probate

       estate on the date of Anil’s death. See Ind. Code § 29-1-1-3(a)(24) (defining

       “Probate estate” as property transferred at death of decedent under decedent’s

       will or under Indiana Code Section 29-1-2). Thus, any unresolved litigation

       regarding the obligations and expenses of a solvent estate would affect the

       amount of the surviving spouse’s elective share.


[25]   Pursuant to the applicable statutory language, Dipa’s right to invoke her

       statutory election was not barred until the expiration of thirty days after the

       final determination of the Trust litigation, which did not occur until the trial

       court entered summary judgment on December 16, 2016.8 Accordingly, Dipa’s

       election to take against the Will made on June 16, 2015, was timely filed.

       Because Dipa timely invoked her statutory right to elect against the Will, the

       trial court erred when it entered summary judgment ignoring the election.9




       8
         Having concluded that the election was timely filed based upon the pending litigation regarding Dipa’s
       original petition to docket the Trust, we need not address Dipa’s assertion that her second amended petition,
       (discussed in Section 2, infra) related back in time to the original petition pursuant to Indiana Trial Rule
       15(C), thus also satisfying the pending litigation requirement of Indiana Code 29-1-3-2(b).
       9
         Although Mili focuses on the timeliness of Dipa’s election, she also implies that Dipa perhaps waived or at
       least should be precluded from pursuing her statutory right of election due to her original attorney’s
       “characterization” of her claims against the Trust during prior proceedings before the trial court as well as
       Dipa’s May 6, 2016, agreement to allow disbursement of a large portion of the Trust assets. Appellee’s Br. at
       24-25. However, Indiana Code Section 29-1-3-6 governs a surviving spouse’s waiver of the right to take
       against a will and provides in pertinent part:
             The right of election of a surviving spouse ... may be waived before or after marriage by a
             written contract, agreement or waiver, signed by the party waiving the right of election, after full
             disclosure of the nature and extent of such right ....

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                       Page 16 of 22
           Section 2 – The trial court abused its discretion in denying
           Dipa’s motion to amend her petition to docket the Trust.
[26]   Having determined that Dipa made a timely election to take against the Will,

       we turn to the related matter of the trial court’s denial of Dipa’s motion to

       amend her petition to docket the Trust to more specifically allege her claim

       against the Trust assets to satisfy her elective share. Indiana Trial Rule 15(A)

       governs the amendment of pleadings, providing in relevant part:


                (A) Amendments. A party may amend his pleading once as a
                matter of course at any time before a responsive pleading is
                served or, if the pleading is one to which no responsive pleading
                is permitted, and the action has not been placed upon the trial
                calendar, he may so amend it at any time within thirty [30] days
                after it is served. Otherwise a party may amend his pleading only
                by leave of court or by written consent of the adverse party; and
                leave shall be given when justice so requires.


[27]   It is well settled that although the trial court retains broad discretion in granting

       or denying amendments to pleadings, amendments should be liberally allowed,

       while giving proper regard for any prejudice to the nonmoving party. Hilliard v.

       Jacobs, 927 N.E.2d 393, 398 (Ind. Ct. App. 2010), trans. denied. We will reverse

       only upon a showing of an abuse of discretion. Id. An abuse of discretion

       occurs when the trial court’s decision is clearly against the logic and effect of




       Mili makes no claim that Dipa signed any agreement waiving her right of election after full disclosure of the
       nature and extent of such right. A waiver not complying with statutory requirements may not be enforced by
       the court. Bohnke v. Estate of Bohnke, 454 N.E.2d 446, 449 (Ind. Ct. App. 1983). Moreover, the fact that a
       large portion of the Trust assets had already been distributed by agreement of the parties, although not ideal,
       did not divest Dipa of the right to invoke her statutory election.

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                      Page 17 of 22
       the facts and circumstances before the court, or if the court has misinterpreted

       the law. Id.


[28]   Dipa’s original petition to docket the Trust made numerous allegations that, in

       accordance with our standards of notice pleading, put Mili on notice that the

       validity of the Trust and Anil’s attempt to essentially disinherit her was at

       issue.10 As stated above, while that litigation was still pending, Dipa timely

       filed her election to take against the Will. The record indicates that three

       months after Dipa filed her election, Mili moved for summary judgment on

       Dipa’s petition to docket the Trust but did not address Dipa’s prior-filed

       election in her summary judgment motion. Thereafter, Dipa filed her motion

       for leave to file a second amended petition to docket the Trust to bring her

       election to the trial court’s attention, and to more specifically allege a claim

       against the Trust assets. In denying Dipa’s motion for leave to file her second

       amended petition, the trial court reasoned,

                The Court believes that permitting [Dipa] to now amend the
                relief sought; to wit: to assert a claim for spousal rights pursuant
                to I.C. 29-1-3-1 against the Trust assets in addition to the attempt
                to set aside the transfer of the IRA, is unduly prejudicial and
                contrary to the interests of justice after extensive discovery has




       10
          Indiana’s notice pleading rules do not require a pleading to adopt a specific legal theory of recovery to be
       adhered to throughout the case or require the complaint to state all elements of a cause of action. Shields v.
       Taylor, 976 N.E.2d 1237, 1244-45 (Ind. Ct. App. 2012). The notice pleading rules merely require that a
       pleading contain the operative facts so as to place the defendant on notice as to the evidence to be presented
       at trial. Id. at 1245. “A complaint’s allegations are sufficient if they put a reasonable person on notice as to
       why a plaintiff sues.” Id.

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017                         Page 18 of 22
               been conducted, the Summary Judgment deadline has passed
               and the original trial date vacated.


       Appellant’s App. Vol. 2 at 17.


[29]   As this reasoning makes clear, the trial court denied Dipa’s motion to amend

       because it believed that allowing Dipa to assert her statutory right to election

       would cause undue prejudice to Mili. While we do not agree that the

       amendment is unduly prejudicial, we find that in denying the motion to amend,

       the court conflated its discretion to deny a motion to amend with a surviving

       spouse’s statutory right to timely elect to take against the will. Indeed, the trial

       court essentially placed a requirement upon Dipa that does not exist in the

       Probate Code, that is, to request trial court permission to assert her right of

       election. She need not do so.


[30]   In other words, Dipa was not required to assert her right of election in a

       pleading or in an amendment thereto. Dipa had no obligation to include her

       election in her initial petition to docket the Trust or to amend her petition to

       include the election, as her election was independent of these pleadings. Once

       her election was timely filed in the form required by statute, as we conclude it

       was, her election was self-effectuating. See Walker v. Lawson, 526 N.E.2d 968,

       970 (Ind. 1988) (noting that election to take against will is a “simple statutory

       election not subject to litigation.”); Miller v. Stephens, 158 Ind. 438, 849, 63 N.E.

       847 (1902) (noting that right of election is “purely statutory” and conditioned

       only upon its “timely and solemn execution” as prescribed by the legislature).


       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 19 of 22
[31]   Under the circumstances presented, it is evident that the trial court

       misinterpreted the law in denying Dipa’s motion to amend. This

       misinterpretation, coupled with the stated policy of this Court and our supreme

       court “to freely allow such amendments in order to bring all matters at issue

       before the court” persuades us to conclude that an abuse of discretion occurred.

       Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 843 (Ind. Ct. App. 2016)

       (quoting Kreilein v. Common Council of City of Jasper, 980 N.E.2d 352, 358 (Ind.

       Ct. App. 2012)), trans. denied. As the impact of Dipa’s valid statutory election

       was an issue between the parties that needed to be addressed moving forward,

       the trial court should have granted the motion to amend to bring all matters at

       issue before it. Thus, we conclude that the trial court abused its discretion in

       denying Dipa’s motion to amend her petition to docket the Trust.


         Section 3 – Genuine issues of material fact remain regarding
                          the validity of the Trust.
[32]   Dipa maintains that while summary judgment in Mili’s favor was

       improvidently granted, summary judgment in her favor is appropriate.

       Specifically, she contends that she is entitled to reach the assets in the Trust to

       satisfy her elective share as a matter of law. We think genuine issues of

       material fact remain.


[33]   As already stated above, in determining the net estate of the deceased spouse

       for the purpose of computing the amount due the surviving spouse electing to

       take against the will, the court considers only such property as would have

       passed under the laws of descent and distribution. Ind. Code § 29-1-3-1(a). A

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 20 of 22
       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 at 488-89. Accordingly, “there is no right in the surviving spouse to any

       of the assets of that trust to satisfy an elected distributive share at the settlor’s

       death.” Id. (quoting Leazenby v. Clinton Cty. Bank & Trust Co., 171 Ind. App.

       243, 248, 355 N.E.2d 861, 864 (1976)).


[34]   An invalid inter vivos trust, however, such as one which is testamentary in

       effect, will not withstand a surviving spouse’s election. Id. at 490. Indeed,

       “[w]hen 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.” In re

       Estate of Weitzman, 724 N.E.2d 1120, 1123 (Ind. Ct. App. 2000). In other

       words, a settlor may not devise a means to defeat his spouse’s elective share in

       contemplation of his death. Dunnewind, 697 N.E.2d at 489.


[35]   The 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. See Estate of Weitzman, 724 N.E.2d at 1124. This is a

       question that the trial court has not yet considered, and one that the parties

       have not had a full opportunity to explore. Contrary to Dipa’s arguments, she

       is not somehow automatically entitled to invade the Trust assets to satisfy her

       statutory election simply because we have found her election timely and

       permitted her proposed second amended petition. As noted by Mili, Dipa

       conceded in her motion to reconsider that at least some additional discovery

       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 21 of 22
       would be necessary by both parties in the event she was permitted to amend her

       petition to docket the Trust. Appellant’s App. Vol. 3 at 158. We agree with

       Mili that genuine issues of material fact remain, thus precluding summary

       judgment.


[36]   In sum, we affirm partial summary judgment on the narrow issue determined

       by the trial court that the Trust is the proper beneficiary of the IRA. We

       conclude that Dipa made a timely election against the Will, and that the trial

       court abused its discretion in denying her motion to amend her petition to

       docket the Trust to bring all issues between the parties before the court.

       Because genuine issues of material fact remain regarding the impact of the

       timely statutory election on the Trust assets, we remand for further proceedings

       consistent with this opinion.


[37]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017   Page 22 of 22
