Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEES:

Attorney for Mattie A. Tedrow:                      DEBRA S. ANDRY
WILLIAM L. SHANEYFELT                               Paoli, Indiana

                                                                             FILED
Shaneyfelt & Bohnenkemper
Jasper, Indiana
                                                                          Nov 16 2012, 9:24 am


                              IN THE                                              CLERK
                                                                                of the supreme court,


                    COURT OF APPEALS OF INDIANA                                 court of appeals and
                                                                                       tax court




MATTIE A. TEDROW and                                )
MARY L. PIERSON,                                    )
                                                    )
       Appellants-Petitioners,                      )
                                                    )
               vs.                                  )      No. 59A01-1204-EU-196
                                                    )
COYEVILLE BELCHER as Personal                       )
Personal Representative of the Estate of Everett D. )
Belcher, Sr.; EVERETT D. BELCHER, JR.; and          )
LYNN R. BELCHER,                                    )
                                                    )
       Appellees-Respondents.                       )


                      APPEAL FROM THE ORANGE CIRCUIT COURT
                          The Honorable Larry L. Blanton, Judge
                              Cause No. 59C01-0906-EU-37


                                       November 16, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
         Mattie Tedrow1 (Mattie) appeals the decision to uphold the terms of the will of her

father, Everett D. Belcher, Sr. (Everett). She argues her brother, Coyeville Belcher (Coy)

exerted undue influence upon Everett and Everett lacked the mental capacity to execute a

will. Finding evidence in the record to support the findings and conclusions, we affirm.

                             FACTS AND PROCUDURAL HISTORY

         Everett had five children: Everett Dale Belcher, Jr. (Dale), Coy, Lynn Ray Belcher

(Ray), Mary Pierson (Mary), and Mattie. In 2006, Everett executed a will which left his

personal gun collection to Coy, with the remainder of his property to be evenly divided

among the five siblings. In 2008, Everett executed an identical will. On March 19, 2009,

Everett executed a will in which Mattie and Mary received five dollars each, Coy received

Everett’s gun collection, and the remainder of Everett’s estate was to be divided amongst

Dale, Ray, and Coy.

         Everett died on May 30, 2009. Coy submitted Everett’s estate to probate on June 5.

On July 6, Mary and Mattie contested Everett’s will, alleging undue influence and lack of

mental capacity. On December 5 and 6, the probate court held hearings, and on March 30,

2012, it entered findings of fact and conclusions thereon denying the will contest.

                                    DISCUSSION AND DECISION

         The trial court entered findings of fact and conclusions sua sponte. When a trial court

makes findings of fact and conclusions thereon sua sponte, our standard of review is well-


1
  Mary Pierson (Mary), Mattie’s sister, joined her in the original action. Mary did not appeal, but as a party at
trial, she is a party on appeal. See Ind. Appellate Rule 17(A) (“A party of record in the trial court . . . shall be a
party on appeal.”).
                                                          2
settled:

               Where the trial court enters specific findings sua sponte, the specific
       findings control our review and the judgment only as to the issues those
       specific findings cover. Where there are no specific findings, a general
       judgment standard applies and we may affirm on any legal theory supported by
       the evidence adduced at trial.
               We apply the following two-tier standard of review to sua sponte
       findings and conclusions: whether the evidence supports the findings, and
       whether the findings support the judgment. Findings and conclusions will be
       set aside only if they are clearly erroneous, that is, when the record contains no
       facts or inferences supporting them. A judgment is clearly erroneous when a
       review of the record leaves us with a firm conviction that a mistake has been
       made. We consider only the evidence favorable to the judgment and all
       reasonable inferences flowing therefrom, and we will neither reweigh the
       evidence nor assess witness credibility.

Trust No. 6011, Lake County Trust Co. v. Heil’s Haven Condominiums Homeowners Ass’n,

967 N.E.2d 6, 14 (Ind. Ct. App. 2012) (additional formatting omitted).

       1.     Undue Influence

       Undue influence is an exercise of sufficient control over a 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 v. Hall, 858 N.E.2d 154,

166 (Ind. Ct. App. 2006), reh’g denied, trans. denied. It is an intangible thing that only in the

rarest instances is susceptible of what may be termed direct or positive proof. Id. That

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

privacy. Id. Undue influence therefore 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.


                                               3
       As circumstances tending to support an inference of undue influence, it is proper to

consider: the character of the beneficiary, any interest or motive the beneficiary might have to

unduly influence the testator, and the facts and surrounding circumstances that might have

given the beneficiary an opportunity to exercise such influence. Id. Certain legal and

domestic 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.

Supervised Estate of Allender v. Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005), reh’g

denied, trans. denied. One such relationship is that of parent and child.2 Id. In such cases,

the law imposes a presumption that a transaction was the result of undue influence exerted by

the dominant party, constructively fraudulent, and thus void, if the challenging party’s

evidence establishes: (a) the existence of such a relationship, and (b) the questioned

transaction between those parties resulted in an advantage to the dominant person in whom

trust and confidence was reposed by the subordinate. Id. Then, the burden of proof shifts to

the dominant party, who must demonstrate by clear and unequivocal proof that the

questioned transaction was made at arm’s length and thus was valid. Id. And see Villanella

v. Godbey, 632 N.E.2d 786, 790 (Ind. Ct. App. 1994) (presumption may be rebutted by clear

and convincing evidence the transaction was fair and equitable and defendant acted in good

faith without taking advantage of his position of trust).

       Here, Mattie asserted at trial Coy had unduly influenced their father into changing his


2
 The parent is generally the dominant party in such a relationship, but a child may be dominant by virtue of
being caretaker of an ailing parent. Allender, 833 N.E.2d at 533-34.

                                                    4
will to essentially disinherit Mattie and Mary. She presented evidence Coy had power of

attorney over Everett, visited Everett often, and frequently took Everett on errands. Coy

rebutted Mattie’s arguments with the following evidence: Everett asked Coy on more than

one occasion to take Everett to his lawyer to change Everett’s will; when Coy indicated he

could not do so, Everett contacted Ray to do so; when Coy took Everett to change his will,

Coy was not a party to the changes made, nor was he present during the final signing and

witnessing of the will. Coy testified Everett was not happy that Mattie testified during a trial

involving the estate of Everett’s ex-wife, and Mary testified she had a strained relationship

with Everett due to a family argument in the past.

       We have found no undue influence in similar situations where a beneficiary cared for

a testator relative and was the natural object of the testator’s bounty. See Meyer v. Wright,

854 N.E.2d 57, 63 (Ind. Ct. App. 2006) (presumption of undue influence was rebutted by

son, who had power of attorney over father, where son had looked to his father for advice

and guidance, visited him nearly every day, and taken him to his doctor appointments, to the

bank, and to dinner and, thus, was the natural object of his father’s bounty), reh’g denied,

trans. denied. Based on the evidence of Mattie and Mary’s damaged relationships with

Everett, and Coy’s willingness to assist Everett for many years up to Everett’s dying days, we

cannot say the trial court abused its discretion when it determined there was no undue

influence in the drafting of Everett’s final will.




                                               5
       2.     Lack of Mental Capacity

       We presume every person is of sound mind to execute a will. Gast, 858 N.E.2d at

165. To rebut this presumption, a party must present evidence that, when the will was

executed, the testator lacked mental capacity to know: “(1) the extent and value of his

property; (2) those who are the natural objects of his bounty; and (3) their deserts, with

respect to their treatment of and conduct toward him.” Id. While the testator’s mental

capacity at the time of executing the will is controlling, evidence of the testator’s mental

condition prior to the will execution is admissible, as it related to the testator’s mental state

when executing his will. Id.

       Mattie and Mary attempted to rebut the presumption Everett had the mental capacity

to execute a will by presenting documents and testimony by his home healthcare nurse.

However, Coy presented the following evidence: Everett commented on the incident with

Mary and was aware of Mattie’s testimony at the hearing regarding Everett’s ex-wife’s

possessions; Everett had almost exclusive control over his bank account and understood the

amount it held; and Everett had expressed his displeasure with Mary and Mattie. Mattie’s

arguments to the contrary are invitations for us to reweigh the evidence and judge the

credibility of witnesses, which we cannot do. See Trust No. 6011, Lake County Trust Co.,

967 N.E.2d at 14 (appellate court may not reweigh the evidence or judge the credibility of

witnesses).




                                               6
                                     CONCLUSION

      The trial court did not abuse its discretion when it enforced Everett’s will because the

plaintiffs did not demonstrate Coy unduly influenced Everett to change his will or Everett

lacked the mental capacity to change his will. Accordingly, we affirm.

      Affirmed.

KIRSCH, J., and NAJAM, J., concur.




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