Pamela Sue Elliott, Individually and as Personal Representative of the Estate of James R. Young and also as the Trustee and Beneficiary of The James R. Young Trust, Appellant-Defendant v. Cheryl Young Morgan, John Witsman, and LaVonda Krout, Appellees-Defendants (2026)

MEMORANDUM DECISION

[1] Pamela Sue Elliott, Individually and as Personal Representative of the Estate of James R. Young (“Pam”), appeals the trial court's award of attorney's fees in favor of Susan E. Womack, James A. Young, John R. Young, John Witsman, and LaVonda Krout.¹ Pam raises two issues for our review, which we consolidate and restate as whether the trial court's award of fees is clearly erroneous.

[2] We affirm.

Facts and Procedural History

[3] Over the course of his life, J.R. Young had three wives, six children, and two stepchildren. Pam was J.R.’s oldest daughter, and for most of her life the two did not get along well. In 1979, J.R. executed a will in which he left $1.00 to Pam. In 1982, he executed a new will in which he intentionally excluded Pam altogether, along with two of his other daughters, Deborah Ann Young and Cheryl Young Morgan.

[4] After marrying his third wife, in 1987 J.R. executed another new will (“the 1987 Will”). J.R.’s third wife brought Witsman and Krout into J.R.’s life as his stepchildren (“the Stepchildren”). The 1987 Will continued to intentionally exclude Pam and Cheryl from J.R.’s estate; otherwise, however, his estate was to be divided among his four other children (Deborah, Susan, James, and John) and the Stepchildren.

[5] In 2018, J.R. turned eighty-three years old. In early April, he learned that he needed a quintuple bypass. He reached out to Pam and initiated reconciliation with her. Pam traveled from her home in Oklahoma to be with J.R. At that time, J.R. and Pam met with J.R.’s attorney, Joel Wesch, to “visit about [his] estate planning,” but this was an informational meeting only and no changes were made to J.R.’s plans. Tr. Vol. 3, p. 196. A few weeks later, Pam returned to be with J.R. through his surgery and, upon his release from the hospital, to get him settled into a nursing home.

[6] Pam thus came to hold a position of trust with J.R. In June 2018, J.R. revoked a prior general durable health care and financial power of attorney that he had granted to Deborah and Susan and signed a new durable power of attorney naming only Pam as his health-care agent. J.R. did not assign anyone powers over his finances in this new document. However, around the same time, he executed documents with his bank to change the pay-on-death beneficiary of two checking accounts from Deborah to Pam.

[7] Over the course of the next year, J.R. met with Wesch on several occasions to discuss his estate plan. On some occasions, J.R. went with his third wife; on some occasions, he went with Pam; and, on some occasions, he went alone. In April 2019, J.R. made Pam the pay-on-death beneficiary of another checking account. Later that month, J.R.’s third wife died.

[8] On May 22, 2019, J.R. executed a new will (“the 2019 Will”). Pam was not present when he did so. In relevant part, the 2019 Will provided for a revocable living trust (“the Trust”) for J.R.’s benefit during his lifetime, which was initially funded with J.R.’s “articles of personal and household use.” Ex. Vol. 6, p. 52. J.R. and Pam were named as co-trustees of the Trust; Pam was named as the sole successor trustee upon J.R.’s death; and Pam was named as the sole beneficiary upon J.R.’s death. The 2019 Will then provided that, upon J.R.’s death, the Trust would be the sole beneficiary of his residuary estate. The 2019 Will named Pam as the personal representative of J.R.’s estate.

[9] In October, Deborah predeceased J.R. In November, J.R. suffered a stroke. He died in December 2019. The value of J.R.’s residuary estate at the time of his death was about $3.5 million.

[10] In January 2020, Pam filed a petition to have the 2019 Will probated. Thereafter, Susan, James, and John (who we will refer to as “the Excluded Children” going forward) filed a complaint against Pam in her personal and administrative capacities and sought to have the 1987 Will probated instead of the 2019 Will.² That complaint alleged the following five counts:

Count 1: Contest of the 2019 Will;

Count 2: Request for production and accounting of financial power of attorney;

Count 3: Request for docketing of the Trust and contesting its validity;

Count 4: Request to void predeath transfers from J.R. to Pam; and

Count 5: Tortious interference with an expectancy.

The factual basis for all five of those claims contained substantial overlap, namely, that, between April 2018 and J.R.’s death, Pam had exerted undue influence or had engaged in fraud or similar conduct over J.R. in order to obtain his assets to the exclusion of his other heirs. See Appellant's App. Vol. 2, pp. 63-71. And because the Stepchildren were named beneficiaries under the 1987 Will, the Excluded Children also named them as parties to their complaint. See Ind. Code § 29-1-7-17 (2019).

[11] In December 2021, the Excluded Children abandoned Count 2. They also clarified that their factual bases for Counts 1, 3, and 4 were all based on Pam's alleged “undue influence, fraud[,] and constructive fraud” vis-à-vis J.R. Appellant's App. Vol. 2, pp. 87-88. Similarly, they clarified that their claim under Count 5 was premised on Pam having allegedly “tortiously interfered with the inheritance of the [Excluded Children] through transfer[-]on[-]death transfers and joint accounts.” Id. at 88.

[12] The trial court held a jury trial on the Excluded Children's claims in January 2025. Following the close of the Excluded Children's case-in-chief, Pam moved for a directed verdict; the trial court granted her motion as to Counts 4 and 5 on the basis that the Excluded Children had presented no admissible documentary evidence of the existence of the accounts underlying those two Counts. See Tr. Vol. 4, pp. 52-53, 56. The jury then returned a verdict for Pam on Counts 1 and 3 regarding the will contest and the corresponding challenge to the Trust.

[13] Thereafter, the Excluded Children and the Stepchildren moved to have their reasonable attorneys’ fees paid for out of J.R.’s estate in accordance with Indiana Code section 29-1-10-14(b) (2019). Pam argued in relevant part that that statute only applied to will contests and, thus, attorneys’ fees for any work done on Counts 2 through 5 were not recoverable. Pam also argued that the Excluded Children's claims were not based on the requisite standard of just cause.

[14] After an evidentiary hearing, the trial court awarded the Excluded Children and the Stepchildren their reasonable attorneys’ fees. In doing so, the court entered findings of fact and conclusions thereon in which the court stated that the Excluded Children's five claims were all based on “a cohesive set of facts that [wa]s equally applicable to each” of the claims, making all of the claims factually “indivisible” from each other. Appellant's App. Vol. 2, pp. 48, 57. The court further found that the Excluded Children's claims were prosecuted with just cause based at least in part on J.R.’s advanced age at the time he executed the 2019 Will and Pam's late-in-life shift from being excluded from J.R.’s estate to holding a position of trust with him and becoming the sole beneficiary of his estate. See id. at 56-57.

[15] This appeal ensued.

Standard of Review

[16] Pam challenges the trial court's award of attorneys’ fees for the Excluded Children and the Stepchildren. According to our Supreme Court:

[We] review[ ] an award of attorney's fees for an abuse of discretion. An abuse of discretion occurs when the court's decision either clearly contravenes the logic and effect of the facts and circumstances or misinterprets the law. To make this determination, this Court reviews any findings of fact for clear error and any legal conclusions de novo. Where a trial court's decision involves an issue of statutory interpretation, the standard of review is de novo.

Nardi v. King, 253 N.E.3d 1098, 1103 (Ind. 2025) (citations and quotation marks omitted).

The trial court's award of fees is supported by the court's findings and is not otherwise contrary to law.

[17] Indiana Code section 29-1-10-14(b) states:

When any person designated as executor in a will, or the administrator with the will annexed, or if at any time there be no such representative, then any devisee therein, defends it or prosecutes any proceedings in good faith and with just cause for the purpose of having it admitted to probate, whether successful or not, the devisee shall be allowed out of the estate the devisee's necessary expenses and disbursements including reasonable attorney's fees in such proceedings.

[18] As our Supreme Court has long recognized:

Prior to the present Probate Code, the unsuccessful proponent of a purported will could not recover his expenses and attorney fees.

The present Probate Code changed this ․ The changes eliminated the unseemly race to the court house to be first in probating or preventing the probate of a will.

* * *

․ The purpose and public policy of the statute is to give all parties concerned a fair trial and to encourage the probating or the resisting of the probate of the will where there are reasonable grounds or probable cause for such proceedings in good faith, without compelling any party to risk financial loss by underwriting the expenses of such proceedings.

Fickle v. Scampmorte, 243 Ind. 165, 183 N.E.2d 838, 839, 841 (1962) (emphasis added; citations omitted).

[19] On appeal, Pam first argues that Indiana Code section 29-1-10-14(b) is in derogation of the common-law rule that all parties pay their own attorneys’ fees, and, thus, we should read it strictly to say that only fees incurred for will-contest claims specifically may be recovered. See, e.g., Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 375 (Ind. 2022) (noting that statutes “in derogation of the common law ․ should be strictly construed”). The Excluded Children respond that the statute is remedial, and, thus, we should read it broadly to fulfill its remedial purposes of ensuring that a testator's intent is properly probated. See, e.g., Corr v. Am. Fam. Ins., 767 N.E.2d 535, 540 (Ind. 2002) (noting that, where a “statute is remedial, it is to be liberally construed”).

[20] While the parties’ legal arguments here are interesting, we conclude they are also beside the point given the trial court's findings of fact. The trial court found that the factual bases for all five of the Excluded Children's claims were “a cohesive set of facts that [wa]s equally applicable to each” of the claims such that each claim was factually “indivisible” from every other claim. Appellant's App. Vol. 2, pp. 48, 57. In other words, the trial court found as a matter of fact that, even if it were to limit its review of the fee petitions to only the Excluded Children's will-contest claim, the work invoiced and time spent by their attorneys would have been the same. As Pam does not challenge the trial court's factual findings here, we conclude that her legal argument fails.

[21] Pam also challenges the trial court's findings and conclusions that the Excluded Children's claims were supported by just cause.³ Again, “just cause” under Indiana Code section 29-1-10-14(b) requires a showing that there were “reasonable grounds or probable cause” to support the will contest. Fickle, 183 N.E.2d at 841.

[22] The Excluded Children's claim that Pam exerted undue influence over J.R., which the Excluded Children alleged in their complaint and maintained through the jury trial, demonstrates that their claims were supported by just cause. As we have stated:

The exercise of undue influence is never presumed. However, in a will contest, where the plaintiff establishes that: (1) a relationship of confidence and trust existed between the testator and the defendant, and (2) the defendant benefitted from the will, a presumption of undue influence arises and shifts the burden of going forward to the dominant party.

Estate of Verdi ex rel. Verdi v. Toland, 733 N.E.2d 25, 28 (Ind. Ct. App. 2000) (citations omitted), trans. denied.

[23] Here, the evidence was undisputed that, after having been estranged from J.R. for most of her life, Pam suddenly came to hold a position of trust with him when he was eighty-two years old and facing a quintuple bypass. The evidence was also undisputed that, although she had been only either a nominal beneficiary of J.R.’s prior wills or had been excluded from them altogether, following her assumption of a position of trust with him she became the sole beneficiary of his substantial estate. Similarly, the Excluded Children presented substantial evidence of various disputed statements Pam had made in the last years of J.R.’s life, as well as offers of proof, in support of their claims.

[24] Pam's essential argument on appeal is that, because the jury ultimately agreed with her, the Excluded Children's claims must have been unfounded. We acknowledge that the jury concluded that Pam had not exerted undue influence over J.R. or otherwise manipulated him in his final estate plans, and we do not suggest otherwise. But whether the jury ultimately agreed with the Excluded Children's claims is not the question here; the question here is whether their claims were supported by just cause. The evidence makes clear that they were.

[25] We therefore affirm the trial court's award of attorneys’ fees for the Excluded Children and the Stepchildren.

[26] Affirmed.

FOOTNOTES

1.   Cheryl Young Morgan was also a named party below, but she does not participate in this appeal.

2.   Neither the named personal representative nor the named successor personal representative in the 1987 Will survived J.R.

3.   We agree with the Excluded Children's argument that Pam's lead brief on appeal does not present an independent argument supported by cogent reasoning on the possible question of whether the amount of the fees awarded was reasonable. See Ind. Appellate Rule 46(A)(8)(a).

Mathias, Judge.

Kenworthy, J., and DeBoer, J., concur.