Jerry J. Finton, Jr., Appellant-Plaintiff v. Nancy J. Wigent, Administrator of the Estate of Dean C. Kreiger, Deceased, Appellee-Defendant (2026)

MEMORANDUM DECISION

[1] This will contest has generated three appeals and more than a decade of litigation over whether the decedent, Dean Kreiger, validly left his residuary estate to his younger daughter, Nancy Wigent. Kreiger's older daughter, Roberta Stellar, initiated the lawsuit but died while the case was pending. Her son, Jerry Finton, was then substituted as plaintiff. Like his mother, Finton claimed Kreiger lacked testamentary capacity and was under undue influence when he executed his last will.

[2] After a bench trial, the court found that Finton failed to prove his claims. The court therefore entered judgment in favor of Wigent, as personal representative of Kreiger's estate. Finton appeals that judgment, claiming the court erred by not drawing an adverse inference that Kreiger lacked testamentary capacity based on Wigent's alleged failure to provide all of Kreiger's medical records during discovery. Finton also claims the court erred by considering Kreiger's prior, unsigned wills as evidence that Kreiger was not under undue influence when he executed his last will. Finding no such errors, we affirm.

Facts

[3] Kreiger was twice married and had two daughters: Stellar, from his first wife; and Wigent, from his second. In January 2003, Kreiger executed a self-proved will, in which he gave $2,000 to Stellar if she was living at the time of Kreiger's death, $10,000 each to two granddaughters, $1,000 to a church, and $500 each to three charities. Kreiger left his residuary estate to Wigent and, if she was not living at the time of Kreiger's death, to Wigent's children. He also named Wigent as personal representative of his estate.

[4] In late 2012 or early 2013, Kreiger was admitted to a long-term care facility due to cognitive decline and Alzheimer's disease. Kreiger died in February 2015 at the age of 91. His original 2003 will was soon found on file at his attorney's office. And in March 2015, Wigent filed a petition to probate the will and for her appointment as personal representative. The trial court granted the petition and authorized Wigent to administer Kreiger's estate.

[5] In April 2015, Stellar sued Wigent, as personal representative, challenging the validity of Kreiger's 2003 will. Stellar specifically claimed that Kreiger lacked testamentary capacity and was under undue influence when he executed the will and gave Stellar $2,000 therein. Shortly after filing her complaint, Stellar served Wigent with discovery. Among other things, Stellar requested a list of Kreiger's medical providers from 2002 until his death and a medical release form for each provider identified. Wigent refused to provide either the list or the release forms, claiming Kreiger's medical records after 2002 were irrelevant to the validity of his will.

[6] In July 2015, Stellar moved to compel Wigent to execute releases for Kreiger's medical records from 2002 to the date of his death. A hearing on the matter was repeatedly continued by the parties and the trial court. In September 2017, Finton was substituted as plaintiff due to Stellar's death, after which no action was taken in the case for a year. In September 2018, Finton moved under Indiana Code § 29-1-10-14 for the payment of his attorney fees from Kreiger's estate. The trial court later denied Finton's motion, pending final judgment and a determination that his complaint was prosecuted in good faith.

[7] In December 2018, the litigation was further delayed by the trial judge's recusal and the appointment of a special judge. Activity resumed in May 2019, when Finton requested a hearing on the four-year-old motion to compel discovery. That hearing was eventually held on August 8, 2019. Four days later, the trial court issued its order compelling Wigent to provide medical releases relating to “Kreiger's initial diagnosis of dementia” within 10 days. Appellant's App. Vol. III, p. 91. Wigent provided release forms in response, but she specifically limited them to medical records created prior to January 2003, when Kreiger executed his last will.

[8] In October 2019, Finton served Wigent with supplemental interrogatories that, among other things, asked her to identify the healthcare provider “who first diagnosed [Kreiger] with dementia, Alzheimer's Disease, diminished mental capacity and/or senile dementia.” Id. at 104. Wigent responded later that month, stating:

To the best of my knowledge, Dean C. Kreiger was never diagnosed nor has had medical work ups for dementia, Alzheimer's Disease, diminished mental capacity and / or senile dementia. I am further unaware of any symptoms exhibited by the decedent which would have caused such [a] diagnosis.

Id.

[9] In November 2019, Finton filed a motion for rule to show cause, alleging Wigent had violated the trial court's August 2019 discovery order by not providing releases for medical records created after January 2003. Finton also alleged that Wigent's interrogatory answer denying knowledge of Kreiger's diagnosis of dementia or Alzheimer's disease was demonstrably false. Wigent thereafter provided Finton with medical releases without a time limitation, and the trial court ultimately denied Finton's motion for rule to show cause.

[10] In January 2020, Wigent moved for summary judgment on Finton's complaint. Finton, in turn, moved to stay his response deadline under Indiana Trial Rule 56(F), noting that Wigent had not provided him with unrestricted medical releases until December 2019. The trial court granted Wigent's motion for summary judgment without ruling on Finton's Trial Rule 56(F) motion. This Court, however, reversed the summary judgment ruling in Finton v. Wigent, 165 N.E.3d 623 (Ind. Ct. App. 2021) (“Finton I”), finding the trial court abused its discretion by not staying Finton's response deadline to allow him to obtain Kreiger's medical records via the belated releases.

[11] On remand from Finton I, Finton continued to pursue discovery relating to Kreiger's initial diagnosis of dementia or Alzheimer's disease to no avail. Then, in February 2022, Wigent again moved for summary judgment on Finton's complaint, this time adding a challenge to Finton's request for attorney fees. Among other evidence supporting her motion, Wigent designated an affidavit in which she authenticated unsigned copies of wills that Kreiger purportedly executed in 1999, 1988, 1983, and 1964.

[12] Finton opposed Wigent's motion for summary judgment, designating excerpts from his deposition testimony, among other evidence. In these excerpts, Finton testified that he encountered Kreiger at a bank in 2000, roughly two years before Kreiger executed his last will. According to Finton, Kreiger did not recognize him during this encounter, and despite prompting by his wife, he did not recall his daughter Stellar either.

[13] The trial court granted Wigent's motion for summary judgment as to Finton's request for attorney fees. But finding genuine issues of material fact as to whether Kreiger lacked testamentary capacity or was under undue influence when he executed his 2003 will, the court denied Wigent's motion for summary judgment as to Finton's complaint. Finton filed a motion to correct error, and while it was pending, he filed another motion for rule to show cause, alleging Wigent had still not complied with the trial court's August 2019 discovery. The trial court denied both motions in September 2022, after which Finton filed a second appeal in this matter. Finton v. Wigent, No. 22A-PL-2682, 2023 WL 4199583 (Ind. Ct. App. June 26, 2023) (“Finton II”).

[14] In Finton II, Finton challenged the trial court's denial of both his request for attorney fees and his motion for rule to show cause. This Court reversed on the attorney fees issue, explaining:

In her summary judgment motion, Wigent argued that Finton is entitled to attorney's fees under [Indiana Code § 29-1-10-14] only if he can show that he would not “stand to benefit under a prior will.” She alleged that, should the 2003 will be set aside, Kreiger's 1999 will would govern[,] and that will does not leave anything to Finton (or Stellar). Wigent designated as evidence in support of that assertion her affidavit, which included as an exhibit an unsigned copy of the 1999 will.

However, the unsigned copy of the 1999 will would be inadmissible at trial. It is well settled that, in ruling on a motion for summary judgment, our courts will only consider evidence which would be admissible at trial. Accordingly, we agree with Finton that Wigent did not sustain her burden as summary judgment movant. And the trial court erred when it entered summary judgment for Wigent on this issue.

2023 WL 4199583, *6 (paragraph numbers, internal citations, and footnotes omitted; italics in original; bolding added).

[15] At the same time, the Finton II Court affirmed the denial of Finton's motion for rule to show cause, explaining:

The core issue here is Finton's difficulty in obtaining medical records to determine the date of any diagnosis for Kreiger of dementia or Alzheimer's disease. Finton's will contest depends in large part on proof that Kreiger was not of sound mind when he executed the 2003 will. Wigent has maintained throughout discovery that she was not aware of any diagnoses for Kreiger of “dementia, Alzheimer's Disease, diminished mental capacity and/or senile dementia.” Finton is incredulous and insists that Wigent's responses are “demonstrably false” and warrant sanctions.

However, while it might be incredible to Finton, it is not outside the realm of possibility that Wigent was unaware of a diagnosis of dementia or Alzheimer's for Kreiger, and Wigent's assertions on that issue are consistent with the allegedly contrary evidence put forth by Finton. For instance, Finton directs us to an advance directives document for Kreiger, which is dated August 2010 and signed by Wigent as his power of attorney. In a blocked-off section for physicians only, which was below Wigent's signature block, a physician hand-wrote the following and attached his own signature: “Mr. Kreiger is unable at this time to make a decision such as this that requires a reasoning thought process.” But while the physician's statement reasonably suggests that Kreiger was impaired at the time of the DNR, there is no evidence that the physician wrote his note prior to Wigent signing the document. Further, Wigent's role as power of attorney gave her the authority to execute the DNR regardless of Kreiger's decision-making abilities at the time. Thus, while this document might make Wigent's statement arguably false, it is not, as Finton maintains, conclusively so such that we must say that the trial court abused its discretion in deciding this pretrial discovery issue.

Similarly, Finton directs us to nursing home records from July 2010 showing that, at that time, Kreiger had “dementia.” In her interrogatory responses dated February 2022, Wigent stated that,

[p]rior to June 30, 2010, the words dementia and Alzheimer's were NEVER attached to my dad's name, to my knowledge. My dad lived independently and self-sufficiently at his home until June 30, 2010. I did not ever think he needed to be evaluated for any type of “cognitive” problem. I'm not sure exactly where, when, or by whom this terminology originated, and from what means. To my recollection, I have yet to see any physician's notes detailing a thorough exam of my dad, blood work, CT of brain, etc., to explain such.

Again, Finton does not believe Wigent on this point and makes clear to this Court that he does not believe Wigent to be credible. But Wigent's credibility, or lack thereof, is not for this Court to say. On the record before us, there is simply no evidence that Wigent's assertions relevant to a diagnosis of Kreiger's dementia or Alzheimer's are, as a matter of law, demonstrably false.

Further, while Wigent may well have been dilatory in providing releases for Kreiger's medical records, the fact is that, even with all of the medical releases now in hand, Finton has been unable to find the evidence he seeks. And, as we observed in Finton I, both Wigent and Finton, as well as the trial court, caused “numerous delays” between 2015 and 2019, so Wigent is not solely to blame for this protracted litigation. In any event, Finton has not shown that the trial court abused its discretion when it did not sanction Wigent for the alleged discovery violations.

In sum, Finton has not shown that the trial court abused its considerably broad discretion when it denied his motion for rule to show cause. While the evidence shows that Wigent could have been more forthcoming in responding to discovery, especially with regard to the medical releases, the trial court acted within its discretion when it declined to enter default judgment against Wigent under these circumstances. And Finton's characterization of Wigent as being untruthful with respect to her knowledge of her father's medical diagnoses is not a conclusion that we can say is compelled by the record in this still-pretrial proceeding.

Id. at *7-8 (paragraph numbers, internal citations, and footnotes omitted; italics in original; bolding added).

[16] On remand from Finton II, Finton amended his complaint to add a claim that, under Indiana law, Kreiger should be presumed to have destroyed his original 2003 will with intent to revoke it. In support of this claim, Finton alleged that only a copy of Kreiger's will had been probated and that the original could not be found. The case eventually proceeded to a two-day bench trial.

[17] Prior to trial, Finton moved for the court to draw an adverse inference that Kreiger lacked testamentary capacity when he executed his 2003 will. According to Finton, such an inference was warranted under Indiana Trial Rule 37 due to Wigent's alleged failure to comply with the trial court's August 2019 discovery order. Finton specifically claimed Wigent had failed to provide him with medical records relating to Kreiger's “initial diagnosis of dementia.” Appellant's App. Vol. III, p. 82. Finton also alleged that Wigent had falsely denied having any knowledge of Kreiger's dementia or Alzheimer's diagnosis in her interrogatory answers. The trial court declined to rule on Finton's adverse inference motion as a pretrial matter.

[18] On the first day of trial, Finton offered into evidence as Exhibit 29 the affidavit that Wigent had previously designated in support of her motion for summary judgment. Attached to this affidavit were copies of the wills Kreiger purportedly executed in 1999, 1988, 1983, and 1964. At the top of these copies were handwritten notations that stated, “Took will,” “Took will,” “Took original,” and “Original in safe,” respectively. Exhs. Vol. IV, pp. 106, 111, 117, 136. None of these copies, however, contained Kreiger's signature. The trial court admitted Exhibit 29 into evidence without any request by Finton that its admission be for a limited purpose. Then, during Finton's direct examination of Wigent, he asked her to read into evidence the handwritten notations on each prior, unsigned will.

[19] On the second day of trial, during Wigent's cross-examination, her counsel had Wigent read into evidence various provisions from Kreiger's prior, unsigned wills. The 1999 will did not include Stellar as a beneficiary. The 1988 and 1983 wills purposefully excluded her from inheriting unless Kreiger's wife, Wigent, and Wigent's children all failed to survive him. And in the 1964 will, Kreiger gave Stellar only his love and affection.

[20] Finton objected to Wigent's testimony about the contents of Kreiger's prior, unsigned wills. He argued that Exhibit 29 had been offered into evidence for the limited purpose of proving Kreiger's habit of keeping the original copies of his wills, not to prove the contents of the documents. In other words, Finton claimed the prior wills could be considered only as to his claim that the original 2003 will could not be found, and therefore, Kreiger should be presumed to have destroyed the will with intent to revoke it. The trial court overruled Finton's objection.

[21] Wigent went on to testify that she was unaware Kreiger was ever formally diagnosed with dementia or Alzheimer's disease. According to Wigent, she had never seen any medical records in which such a diagnosis had been made, nor had she been informed that they existed. Though she acknowledged terms like “Alzheimer's” started being used in records associated with Kreiger in June 2010, Wigent disputed that he had ever been tested for or diagnosed with the disease.

[22] Other evidence presented at trial included: (1) medical records showing that Kreiger suffered two separate strokes in 1998; (2) Finton's testimony about Kreiger not recognizing him during their bank encounter in 2000; (3) medical records showing that Kreiger fell, injured his lower back, and took Darvocet to manage the pain in 2002; (4) Wigent's testimony that Kreiger lived alone and independently cared for his needs between January 2003 and June 2010; and (5) medical records indicating Kreiger had diminished capacity, including Alzheimer's disease, after June 2010. Additionally, Finton provided photographs, greeting cards, and letters between Stellar and Kreiger that he argued were evidence they maintained a positive relationship.

[23] Following trial, the court entered judgment in Wigent's favor on Finton's complaint. Among other things, the court found that the original 2003 will, not a copy, had been probated and, therefore, the presumption of revocation did not apply. The court also concluded that Finton failed to prove Kreiger lacked testamentary capacity or was under undue influence when he executed the will. In support of the latter two conclusions, the trial court specifically found:

[Testamentary Capacity]

The Court finds that all discovery issues in this case have been resolved well before trial, and there is nothing before this Court that indicates Finton has been deprived of any medical records, despite the protracted litigation and discovery disputes. The Court does not find any adverse inference against Wigent.

***

While Kreiger did suffer from strokes in 1998, the record contains no evidence that the strokes resulted in unsoundness of mind. To the contrary, the only neurological deficit, post-stroke, was a mild slurring of his speech.

Finton also argues that his encounter at the bank with Kreiger in 2000, when Kreiger allegedly did not recognize him, is evidence that he was of unsound mind. This isolated, uncorroborated allegation is not sufficient for the Court to find Kreiger was of unsound mind at the time he executed the Will.

Kreiger did fall and injure himself approximately one month before executing the Will. The evidence indicates that he was in substantial enough pain that he required a prescription drug for his pain. However, the record is devoid of evidence that this affected his mental capacity, let alone to the degree of unsoundness of mind to invalidate the Will.

The Court also finds it is notable that Kreiger lived independently and took care of his daily needs for many years after the execution of the Will.

Finton requests that the Court consider the medical records that note Kreiger's cognitive decline and Alzheimer's disease. However, the dates related to these records are after June 30, 2010. Since the Will was executed on January 16, 2003, the Court gives little weight to these records.

Therefore, there is not sufficient evidence before the Court for it to find that Kreiger lacked the testamentary capacity to understand: (1) the extent and value of his property; (2) who were the natural objects of his bounty; or (3) the just deserts of the natural objects of his bounty, and how those people had treated him.

***

[Undue Influence]

The evidence shows that Kreiger lived independently and made his own decisions, financial and otherwise, for many years after executing the Will. The evidence also shows that the relationships Kreiger maintained with Wigent and her family were closer than with Stellar and Finton. The Court does consider the photographs, greeting cards, and letters admitted by Finton. However, the Court gives little weight to those items, as they are too minimal and sporadic to rely on as to the nature and strength of Kreiger's relationships with Stellar and Finton.

There is insufficient evidence to suggest that Kreiger was weak and susceptible, or that his free will was, or could have been, destroyed and substituted for Wigent's at the time he executed the Will. Moreover, the Court does not find sufficient evidence to hold that Wigent exercised undue influence over Kreiger․

***

Though the Court does not find an analysis of the prior wills to have been necessary in arriving at its decision, ․ the Court rejects Finton's position that the contents of the prior wills cannot be considered as evidence.

The Court finds that the contents of Kreiger's prior wills are consistent with the contents of the Will in question. Except in the event of the demise of primary beneficiaries in the prior wills, Kreiger has nearly a forty-year history of not providing for Stellar by will. Although the bequest to Stellar in the contested Will is modest, it exceeds any provision made for her in prior wills. Overall, the prior wills provide further evidence relevant to undercutting Finton's allegations of undue influence.

Appellant's App. Vol. II, pp. 71-78 (paragraph numbers and bolding omitted).

Discussion and Decision

[24] Finton appeals the trial court's judgment in Wigent's favor on his complaint contesting Kreiger's 2003 will. Under Indiana Code § 29-1-7-17, “any interested person” may challenge the validity of a will based on “(1) the unsoundness of mind of the testator; (2) the undue execution of the will; (3) that the will was executed under duress or was obtained by fraud; or (4) any other valid objection to the will's validity or the probate of the will.” According to Finton, the trial court erred in concluding that he failed to prove Kreiger lacked testamentary capacity or was under undue influence when he executed his 2003 will. See generally Ind. Code § 29-1-7-20 (allocating burden of proof to person contesting will). We find no error in either conclusion.

I. Standard of Review

[25] Where, as here, the trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), our standard of review is “well settled.” Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020).

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made.

Id. (quoting Trabucco v. Trabucco, 944 N.E.2d 544, 548-49 (Ind. Ct. App. 2011)). “[W]hen findings of fact are unchallenged, this Court accepts them as true.” Id.

II. Testamentary Capacity

[26] “Every person is presumed to be of sound mind to execute a will.” In re Rhoades, 993 N.E.2d 291, 299 (Ind. Ct. App. 2013). To rebut this presumption, the opponent of the will must show that, at the time the testator executed their will, they “lack[ed] the mental capacity to know: (1) the extent and value of [their] property; (2) those who are the natural objects of [their] bounty; and (3) their deserts, with respect to their treatment of and conduct towards [the testator].” Id. (internal quotation marks omitted). “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.

[27] In challenging the trial court's conclusion that he failed to prove Kreiger lacked testamentary capacity when he executed his 2003 will, Finton argues only that the trial court erred by declining his request for an adverse inference on that issue. According to Finton, such an inference was warranted under Indiana Trial Rule 37 due to Wigent's alleged failure to comply with the trial court's August 2019 discovery order. That order effectively required Wigent to provide Finton with all medical records relating to Kreiger's “initial diagnosis of dementia.” Appellant's App. Vol. III, p. 91.

[28] Trial Rule 37(B)(2) provides: “If a party ․ fails to obey an order to provide or permit discovery, ․ the court in which the action is pending may make such orders in regard to the failure as are just[.]” Additionally, under Indiana law, “the exclusive possession of facts or evidence by a party, coupled with the suppression of the facts or evidence by that party, may result in an inference that the production of the evidence would be against the interest of the party which suppresses it.” Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000) (quoting Porter v. Irvin's Interstate Brick & Block Co., 691 N.E.2d 1363, 1364-65 (Ind. Ct. App. 1998)). “Absent clear error and resulting prejudice, the trial court's determinations with respect to violations and sanctions should not be overturned.” Carter v. Robinson, 977 N.E.2d 448, 455 (Ind. Ct. App. 2012).

[29] In concluding an adverse inference was not warranted, the trial court found “there is nothing before this Court that indicates Finton has been deprived of any medical records, despite the protracted litigation and discovery disputes.” Appellant's App. Vol. II, p. 72. Finton claims this finding was clearly erroneous. According to Finton, the evidence showed that Wigent concealed from him medical records relating to Kreiger's initial diagnosis of dementia or Alzheimer's disease.

[30] In support of his claim, Finton cites Wigent's testimony that she was unaware Kreiger was ever formally diagnosed with dementia or Alzheimer's disease and had never seen any medical records in which such a diagnosis had been made. Finton juxtaposes this testimony with an advance directive form that Wigent signed as Kreiger's power of attorney in August 2010, above a physician's statement that “Mr. Kreiger is unable at this time to make a decision such as this that requires a reasoning thought process.” Exhs. Vol. IV, p. 58. Finton also highlights an acknowledgement form that Wigent signed as Kreiger's power of attorney in December 2012, acknowledging her receipt of information on the specialized “Alzheimer's/Dementia Units” at Kreiger's nursing home. Id. at 211.

[31] Contrary to Finton's claim, this evidence does not conclusively establish the existence of medical records relating to Kreiger's initial diagnosis of dementia. It also does not establish that Wigent had knowledge of such records. And to the extent it even suggests either conclusion, the trial court was entitled to reach the opposite conclusion by assessing Wigent's credibility and weighing her testimony against the other evidence, or lack thereof.¹ “We do not reweigh the evidence.” Moriarty, 150 N.E.3d at 626.

[32] For these reasons, the trial court did not err in finding no evidence that Finton was deprived of any medical records. And as that finding supports the court's determination that an adverse inference was not warranted, we find no error in the conclusion that Finton failed to prove Kreiger lacked testamentary capacity when he executed his 2003 will.

III. Undue Influence

[33] “Undue influence is defined as ‘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.’ ” Moriarty, 150 N.E.3d at 629 (quoting In re Estate of Compton, 919 N.E.2d 1181, 1185-86 (Ind. Ct. App. 2010)). “When considering whether a will is invalid because it is a product of undue influence, the mental state of the testator is a factor the courts consider.” Id. at 630. “However, ‘[c]omplete unsoundness of mind is not necessary to support a finding of undue influence; rather, weakness of mind when combined with other factors is sufficient.’ ” Id. (quoting Nichols v. Estate of Tyler, 910 N.E.2d 221, 229 (Ind. Ct. App. 2009)).

[34] In challenging the trial court's conclusion that he failed to prove Kreiger was under undue influence when he executed his 2003 will, Finton argues only that the court erred by considering the contents of Kreiger's prior, unsigned wills when deciding the issue. According to Finton, the prior wills were offered into evidence for the limited purpose of showing that Kreiger's original 2003 will had not been found, and therefore, Kreiger should be presumed to have destroyed the will with intent to revoke it. But the trial court found that “Finton admitted the prior wills in their entirety at trial, without requesting admission for a limited purpose or otherwise requesting a restriction on the[ir] use before admission.” Appellant's App. Vol. II, p. 77.

[35] Finton claims the trial court's finding is clearly erroneous, highlighting his counsel's objection when opposing counsel attempted to cross-examine Wigent on the contents of the prior, unsigned wills. The prior wills, however, are not the same evidence as Wigent's testimony about their contents. And as the trial court's finding recognizes, the wills had already been offered by Finton and admitted into evidence without limitation by the time Finton's counsel lodged her objection to Wigent's testimony a day later. “[A] complaining party may not successfully assert error in the admittance of certain evidence if he himself offers and succeeds in getting the same or similar evidence before the jury.” Leuck v. Goetz, 280 N.E.2d 847, 853 (Ind. Ct. App. 1972).

[36] Finton also claims that the law-of-the-case doctrine precluded the admission of Kreiger's prior, unsigned wills into evidence at trial. “The law-of-the-case doctrine provides that an appellate court's determination of a legal issue binds both the trial court and the court on appeal in any subsequent appeal involving the same case and substantially the same facts.” Luhnow v. Horn, 760 N.E.2d 621, 625 (Ind. Ct. App. 2001). Its purpose is “to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court.” Id. Therefore, the doctrine bars relitigation for all issues decided “directly or by implication in a prior decision.” Id. (internal quotation marks omitted). “However, where new facts are elicited upon remand which materially affect the questions at issue, the court upon remand may apply the law to the new facts as subsequently found.” Id.

[37] Finton contends the admissibility of Kreiger's prior, unsigned wills was resolved in Finton II, when this Court stated, “the unsigned copy of the 1999 will would be inadmissible at trial.” 2023 WL 4199583, *6. But in Finton II, Wigent had designated the prior wills as evidence in support of her motion for summary judgment, and Finton had moved to strike the wills as inadmissible evidence. In contrast, it was Finton who offered the wills into evidence at trial, and he did so without limitation or objection. Under these materially different facts, the law-of-the-case doctrine did not preclude the trial court's admission or consideration of the wills.

[38] That being said, the trial court specifically stated in its order that it “d[id] not find an analysis of the prior wills to have been necessary in arriving at its decision.” Appellant's App. Vol. II, p. 76. Finton contends the trial court must have considered the prior wills because, otherwise, “Wigent's uncorroborated testimony” was the only evidence that Kreiger was not under undue influence when he executed his 2003 will. Appellant's Br., p. 56. But even if we assume Wigent's testimony was uncorroborated and insufficient to prove lack of undue influence, it was Finton's burden to affirmatively prove that undue influence occurred. Ind. Code § 29-1-7-20. On appeal, Finton points to no evidence by which he claims to have carried that burden.

[39] For these reasons, we find no error in the trial court's conclusion that Finton failed to prove Kreiger was under undue influence when he executed his 2003 will.

[40] Affirmed.

FOOTNOTES

1.   We note that the same or similar exhibits were analyzed in Finton II and found to be “consistent” with Wigent's assertion that she was unaware Kreiger was ever formally diagnosed with dementia or Alzheimer's disease. 2023 WL 4199583, *7. We echo that finding here.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.