Elaine Davey, Appellant-Plaintiff, v. Richard E. Boston, Appellee-Defendant

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Court of Appeals of Indiana.

Elaine Davey, Appellant-Plaintiff, v. Richard E. Boston, Appellee-Defendant

Court of Appeals Case No. 89A01-1712-PL-2955

Decided: July 26, 2018

ATTORNEYS FOR APPELLANT Alexander P. Pinegar, Samuel R. Robinson, Sarah J. Randall, Jessica L. Billingsley, Church Church Hittle & Antrim, Noblesville, Indiana ATTORNEYS FOR APPELLEE Leslie B. Pollie, Travis W. Montgomery, Kopka Pinkus Dolin PC, Carmel, Indiana

MEMORANDUM DECISION ON REHEARING

[1] We write for the limited purpose of addressing Boston's contention that “Ms. Davey had available to her a copy of her husband's will that was indeed fully executed with both Mr. Davey's signature and the signatures of two witnesses.” Pet. for Reh. p. 7. It is true that Davey's motion to set aside and vacate judgment contains an exhibit that is a photocopy of the Will depicting two witness signatures.

[2] Initially, we note that this document is not in the summary judgment record. Indeed, at no point did Boston designate this document as evidence. Instead, Davey introduced it into the record to contrast it with the original copy of the will that she had found, which contains only one witness signature.

[3] Moreover, when viewed in a light most favorable to non-movant Davey, there is a wealth of evidence supporting her argument that this document is not a photocopy of a validly executed will. Instead, it is a photocopy of a document on which Boston's signature was added at some point after the execution of the Will. At the very least, there are many questions of fact surrounding this document.1

[4] Footnote three in our original decision states that “[n]owhere in the record is there a copy of the Will that contains all necessary signatures.” Mem. Dec. p. 7 n.3. Our language was imprecise; we should have said one of two things—either, “nowhere in the summary judgment record is there a copy of the Will that contains all necessary signatures”; or, “at the very least, there are multiple questions of fact as to whether the record contains an original version of the Will bearing all necessary signatures.” We grant the petition for rehearing for the limited purpose of correcting that language. In all other respects, we deny the petition.

[5] The petition for rehearing is granted in part and denied in part.

FOOTNOTES

1.   We note again that Boston admitted in his deposition that he failed to sign the original Will at the time of execution, that Boston's staff photocopied the Will immediately following its execution, and that the copy of the Will in Boston's file bears the signature of only one attesting witness.

Baker, Judge.

Kirsch, J., and Bradford, J., concur.

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