Avery v. Avery

After decedent Mary Avery died, sons Rod and Marshall Avery filed a petition to remove daughter Trina Avery as the personal representative of decedent's estate and to probate decedent's 2008 will naming Rod as the personal representative. Trina filed a separate action to contest the 2008 will, asserting that it was the product of undue influence, fraud, and duress, and that decedent had executed a subsequent will in 2009 that superceded and revoked the 2008 will. When Defendants Rod and Marshall failed to file an answer or other responsive pleading, the trial court entered judgment by default against them. At issue on appeal was whether Defendants were required to file an answer in the will contest action when the statutory provisions did not explicitly mandate the filing of an answer. The Supreme Court affirmed, holding (1) the Indiana Rules of Trial Procedure require the timely filing of an answer or responsive pleading and do not exempt will contest actions from the requirement, and (2) by failing to file a timely answer or other proper response in the will contest, Defendants were subject to a default judgment. View "Avery v. Avery" on Justia Law