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ATTORNEYS FOR APPELLANTS
Donald K. McClellan McClellan, McClellan & Arnold Muncie, Indiana

ATTORNEYS FOR APPELLEE
P. Gregory Cross The Cross Law Firm, P.C. Muncie, Indiana John T. Cook Cook & Welch Winchester, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 18S04-0409-CV-430 GENE LASATER AND CAROLYN LASATER, Appellants (Respondents below), v. DONALD HOUSE, SR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF OPAL M. PULLEN, DECEASED, ET AL., Appellees (Petitioners below). _________________________________ Appeal from the Delaware Circuit Court 4, No. 18C04-0104-CP-43 The Honorable Peter D. Haviza, Special Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 18A04-0305-CV-223 _________________________________ January 31, 2006 Rucker, Justice.

The question presented is whether in a will contest the hearsay statements of a testator are admissible to prove undue influence. We conclude they are not.

Background and Procedural History

In May 1994, Opal Pullen, a widow with no children, executed her last will and testament leaving $1,000 each to two charitable organizations and $2,000 each to five family members, including her nephew Donald House. Pullen left the rest and residue of her estate, which included a 120-acre farm, to her neighbors, Gene and Carolyn Lasater. The Star Trust Company was named as personal representative. Pullen also executed a power of attorney naming David A. Vannatter, a local banker and family friend, as her attorney-in-fact.

In January 1998, Pullen revoked Vannatter's power of attorney and appointed her nephew House in his stead. Thereafter, in February 1998, Pullen revoked her first will and executed a second will. She again left $1,000 each to two charitable organizations. But this time she bequeathed $20,000 each to five family members, including House, and left only half of her farm to the Lasaters. The rest and residue of her estate was bequeathed to four family members. House was named personal representative of Pullen's estate.

Pullen died in January 2001 at the age of ninety-one, and her second will was admitted to probate. The Lasaters filed a complaint against House and other beneficiaries (together "the Estate"), alleging that Pullen's second will was invalid because, "at the time of the execution of said Will, Opal M. Pullen was incompetent by reason of unsoundness of mind and/or was under undue influence or duress at the time of the execution of said will." Appellant's App. at 20. During discovery, several witnesses testified that Pullen had made statements about her relationship with House as well as the Lasaters concerning her estate plans. More specifically, (1) Pullen's former insurance agent stated Pullen told him that she did not want House to have anything; (2) one of Pullen's former caretakers stated Pullen told her that she was good friends with the Lasaters, that she was never close to House, and that it was House's idea to give a family member her power of attorney; (3) another of Pullen's former caretakers stated that the Lasaters were Pullen's longtime friends; (4) Pullen's former attorney-in-fact stated that Pullen

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told him that she was afraid of House and that she was going to have to change her power of attorney to keep peace in the family; and (5) Pullen's former hairdresser stated that Pullen had always said that the Lasaters would be heirs to her farm and house, but that Pullen said she changed her will against her wishes because House was family. Br. of Appellants at 4-6. The Lasaters also deposed two expert witnesses, William Fatout, a probate attorney, and Dr. Thomas Murray, a licensed psychologist. Both opined that House exerted undue influence over Pullen.

A jury trial was originally scheduled for November 12, 2002, and a few weeks before that time the Estate filed a motion in limine to prohibit the Lasaters from presenting evidence or eliciting testimony concerning statements Pullen may have made evidencing "the existence of undue influence upon her by other persons." The Estate also filed a motion to preclude the testimony of attorney Fatout and Dr. Murray on the grounds that their opinions were comprised of inadmissible legal conclusions, did not meet the criteria of Indiana Rules of Evidence 702 and 704, would not assist the jury, and were unreliable.

Thereafter in March 2003 the trial court granted the Estate's motion and entered an order that dictated in relevant part: "such evidence [the hearsay statements of various witnesses] upon the issue of undue influence of the testator, Opal M. Pullen, is not admissible under Indiana law and shall not be introduced in a trial upon the issue of undue influence upon the testator, Opal M. Pullen, deceased." Appellants' App. at 16. 1 The trial court also entered a separate order

precluding the Lasaters from presenting the opinion testimony of attorney Fatout and Dr. Murray. The Lasaters pursued an interlocutory appeal. Affirming in part and reversing in part the judgment of the trial court, the Court of Appeals held that the trial court correctly excluded the expert opinion testimony. With respect to the challenged hearsay statements, the Court held that they "are relevant to Pullen's state of mind at the time she executed her second will" and

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In its order excluding Pullen's statements, the trial court listed page numbers from various witnesses' depositions and concluded, "such evidence . . . is not admissible . . . ." Rather than addressing each of the statements contained on those listed pages, we limit our discussion to the specific statements that the Lasaters set forth in their brief on appeal.

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thus "are admissible under Rule 803(3)." Lasater v. House, 805 N.E.2d 824, 833 (Ind. Ct. App. 2004). Having previously granted transfer, we now affirm the trial court's judgment. 2

Discussion

In actions to contest and set aside the probate of a will, the grounds usually asserted are some combination of unsoundness of mind, fraud, duress, undue influence, or that the will was unduly executed. See Indiana Code

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