Unsupervised Estate: Mark C. Ewing, Intervenor-Appellant v. Ronda Henry and Derrick Henry, Interested Parties-Appellees (2025)

MEMORANDUM DECISION

[1] Mark C. Ewing (Mark) appeals the trial court's determination that a codicil to his mother's Last Will and Testament (Will) was admitted to probate simultaneously with the Will and that, as a result, his challenge to the codicil many months later was untimely. The codicil was not submitted with the Will. Instead, the codicil was first provided to the trial court two weeks after it admitted the Will to probate. We agree with Mark that the court erred in finding the codicil was admitted to probate before the court even viewed the document. We therefore reverse and remand for further proceedings consistent with this opinion.

Facts

[2] In 2001, Mary Kay Ewing executed her Will, naming her son, Mark, as personal representative and her daughter, Ronda Henry, as successor representative. More than twenty years later, and a little more than a month before her death, Mary Kay executed a codicil (Codicil) to the Will. In that Codicil, she added four beneficiaries to the Will, specifically bequeathed some personal property, and added two $5,000 monetary gifts.

[3] Following Mary Kay's death, Mark and his brother, Bryan Ewing, petitioned to admit the Will to probate. The petition was filed on August 26, 2022, and alleged that “Decedent is believed to have died testate, leaving a self-proving Last Will and Testament dated December 17, 2001, and a Codicil thereto dated June 15, 2022.” App. Vol. II, p. 21. The petition noted, however, that Mark and Bryan “did not have access” to the Codicil at that time, so it was not included in the filing. Id.¹ Six days later, the trial court admitted the Will to probate and named the brothers as personal representatives.

[4] About two weeks after the order was issued, Ronda petitioned to remove her brothers, Mark and Bryan, as personal representatives. She attached the Codicil as an exhibit to her petition. This marked the first opportunity for the court to review the terms of the Codicil. The court granted Ronda's request for removal and, based on the parties’ agreement, ultimately appointed a special administrator for the estate.

[5] Nine months later, Mark and Bryan successfully petitioned to intervene as parties in the probate litigation. Mark later questioned the validity of the Codicil, claiming the Codicil had never been properly admitted to probate. He asserted that the Will controlled distribution of the estate's assets because it was the only document admitted to probate and its validity had never been contested.

[6] The trial court determined that the Codicil was necessarily admitted to probate at the same time as the Will because as statutorily defined, a will includes all codicils. The court also noted that a will contest, by statute, must be launched within three months of the will's admission to probate. Because Mark's challenge to the Codicil was raised many months after the Will's admission, the court determined it was untimely. Mark appeals that determination.

Discussion and Decision

[7] Mark raises two issues on appeal. First, he contends the court's order admitting the Will to probate could not have admitted the Codicil to probate as well because the Codicil had not been offered. Second, Mark argues that Ronda's failure to timely contest the Will means the Will stands without the Codicil.

[8] We review de novo the trial court's order because it turns on a question of statutory interpretation. In re Trust of Bosworth, 230 N.E.3d 988, 992 (Ind. Ct. App. 2024). Applying this standard, we conclude that the Codicil was never admitted to probate and therefore the period for challenging it has not begun. Accordingly, we reverse and remand.

I. The Codicil Could Not Be Admitted to Probate Before It Was Produced

[9] “Will,” as defined by Indiana's Probate Code, “includes all wills, testaments, and codicils.” Ind. Code § 29-1-1-3(a)(38). The Probate Code further provides:

When a will is offered for probate, if the court finds that the testator is dead and that the will was executed in all respects according to law, it shall be admitted to probate as the last will of the deceased, unless objections are filed as provided in section 16 of this chapter.

Ind. Code § 29-1-7-13(a).

[10] The trial court reasoned that, because Indiana law treats a will and its codicils as one instrument, the admission of the Will to probate necessarily admitted the Codicil as well. This ruling ignores a practical impediment: how can a court determine under Indiana Code § 29-1-7-13(a) that a Codicil was executed in all respects according to law—a prerequisite to its admission to probate—if the court lacks the document?

[11] In their petition to probate the Will, Mark and Bryan explicitly represented to the court that Mary Kay had executed the Codicil to the Will. This acknowledgment effectively placed the Codicil before the court for probate consideration. But before the Codicil could be admitted, the court needed to enter the requisite finding under Indiana Code § 29-1-7-13(a) that the Codicil was “executed in all respects according to law.” The court could not make this finding until the Codicil was produced, and neither party had done so when the Will was admitted to probate.

[12] This document omission was cured two weeks later when Ronda attached the Codicil to her petition to remove Mark and Bryan as personal representatives. That filing sparked the trial court's first opportunity to determine under Indiana Code § 29-1-7-13(a) whether the Codicil “was executed in all respects according to law” and should be admitted to probate. But the trial court never made this determination. Instead, the court decided many months later that the Codicil had already been automatically admitted with the Will. This was error. Logic dictates that the Codicil, although part of the Will, could not be admitted to probate before it was produced.

II. Because the Codicil Was Never Admitted to Probate, the Three-Month Deadline for Contesting it Has Not Expired

[13] The trial court's mistaken belief that the Codicil had been admitted to probate, in turn, prompted its erroneous conclusion that Mark's challenge to the validity of the Codicil was untimely. A challenge to the validity of a will must be filed within three months after the will is admitted to probate. Ind. Code § 29-1-7-17. While we agree the Codicil is legally part of the Will, the three-month deadline for challenging the Codicil's validity has not begun because the Codicil was never admitted to probate under these unusual circumstances. See In re Plummer's Estate, 219 N.E.2d 917, 922 (Ind. Ct. App. 1966) (ruling that a will must be admitted to probate before a will contest is appropriate).

[14] Accordingly, we reverse and remand with instructions for the trial court to review the Codicil to determine whether it should be admitted to probate.

[15] Reversed and remanded.

FOOTNOTES

1.   Bryan was named in the Codicil. Mark was not.

Weissmann, Judge.

Judges May and Scheele concur. May, J., and Scheele, J., concur.