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Walker v. Lawson - 526 N.E.2d 968 (Ind. 1988)

Rule:

A spouse cannot by gifts in contemplation of death deprive a surviving spouse of his or her statutory share in the estate and Ind. Code § 29-1-3-1 is designed to make it impossible for a spouse to deprive the surviving spouse of a full one-third of the property.

Facts:

The decedent intended on leaving her estate to her two minor sons by her first deceased husband. Appellee attorney Lawson prepared the will. After the decedent passed, the second husband elected to take against the will and received his share under Ind. Code § 29-1-3-1. Appellee beneficiary, who was one of the two sons, alleged that the attorney failed to advise the decedent that the second husband could have elected against the will. Further, the attorney allegedly should have created a trust or a joint tenancy instead of a will. The trial court granted summary judgment in favor of the attorney. The court of appeals reversed.

Issue:

Will an action lie by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party?

Answer:

Yes

Conclusion:

Setting aside the court of appeals' opinion, the Supreme Court of Indiana affirmed the trial court's grant of summary judgment in favor of appellee attorney. The Court disagreed with the court of appeals' decision that there was a question of fact to be determined concerning the competency of the attorney in the drafting of the will as opposed to other alleged alternatives to accomplish the purpose of preserving the testator's entire estate for her minor children. The Court found that the attorney made a proper decision faced with the rule that a spouse could not have, by gifts in contemplation of death, deprived a surviving spouse of his statutory share in the estate. Also,  Ind. Code § 29-1-3-1 prevented a deceased spouse from depriving the surviving spouse his statutory share. The Court explained that it is inappropriate for a court to entertain evidence concerning a witness's interpretation of the law. The presence of affidavits by attorneys voicing their opinions about inter vivos trusts did not create a genuine issue of material fact; thus, it did not preclude the issuance of a summary judgment. 

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