COA: Pre-death family will settlement agreement enforceable

Ruling on a matter of first impression Friday, the Indiana Court of Appeals found that family members may enter into an enforceable settlement agreement regarding the distribution of assets from an estate before the testator’s death.

The question arose in a Morgan County case, In the Matter of the Supervised Estate of Gary D. Kent, Deceased, et al. v. Cynthia Kerr,
55A01-1612-ES-2907. Before Gary D. Kent died, he asked his children, Cynthia Kerr and John David Kent, to sign a settlement agreement in December 2015 specifying how their inheritance would be divided upon his death. The father had a valid will calling for an equal division of the estate, but the agreement specifically outlined who would receive particular property and satisfy a mortgage, among other things.

A week after the siblings signed the agreement that was notarized by their father’s lawyer, John executed a written notice that he was rescinding the agreement and sent it to Cynthia by certified mail. Gary died the next month, after which John and Kevin, a cousin of Gary’s who was a personal representative, filed a petition to probate the will. Cynthia challenged the probate action and asked the trial court to enforce the settlement agreement. She argued I.C. 29-1-9-1 permits prospective beneficiaries of a future inheritance to execute a family settlement before the decedent’s death. The trial court rejected her motion for summary judgment, leading to this appeal.

The COA reversed and remanded to the trial court to enter judgment on Cynthia’s motion to enforce the agreement. The panel’s statutory interpretation noted Indiana case law favors the strong presumption of the enforceability of contracts.

“Cynthia presents an issue of first impression for our courts, namely, whether Indiana Code Section 29-1-9-1 permits family settlement agreements to be executed prior to a decedent’s death,” Judge Edward Najam wrote for the court. “… (W)e hold that Indiana Code Section 29-1-9-1 does not prohibit pre-mortem family settlement agreements.

“John contends only that he had a right to rescind the agreement because Gary was still alive when he executed the rescission. But John does not support that contention with citation to authority, and we are not aware of any such authority. In sum, the agreement is supported by adequate consideration, and John’s purported rescission was a nullity. The trial court erred when it denied Cynthia’s motion to enforce the agreement,” Najam wrote.