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ATTORNEYS FOR APPELLANT
Kenneth J. Allen Bryan L. Bradley Michael T. Terwilliger Kenneth J. Allen & Associates, P.C. Valparaiso, Indiana

ATTORNEYS FOR APPELLEE
F. Joseph Jaskowiak Kevin G. Kerr Hoeppner Wagner & Evans LLP Valparaiso, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 56S03-0511-CV-587 IN RE ESTATE OF GARY HAMMAR, DECEASED MARGARET LEWIS, v. JANET KAYE HAMMAR, Appellee (Plaintiff below). _________________________________ Appellant (Defendant below),

Appeal from the Newton Superior Court, No. 56D01-0504-ES-04 The Honorable Daniel J. Molter, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 56A03-0504-CV-177 _________________________________ May 23, 2006 Dickson, Justice.

The issue presented in this probate case is whether the trial court properly replaced Margaret Lewis, the decedent's former wife, with Janet Hammar, his widow, as the special administrator on behalf of the estate in a wrongful death action. In her appeal, Margaret, who is also the mother to the decedent's four children (two seventeen-year-old minors and two adults) argues that the trial court erred by removing her as special administrator for reasons other than those enumerated in the Indiana Code. The Court of Appeals agreed, finding that the statutory requirements for removing a special administrator were not met, and it reversed the trial court. In re Estate of Hammar, 832 N.E.2d 1065, 1071 (Ind. Ct. App. 2005). We granted Janet's petition

for transfer, automatically vacating the Court of Appeals opinion, and we now affirm the trial court.

On Thursday, April 7, 2005, the decedent, Gary Hammar, was killed in a vehicular accident, in which Janet Hammar, his wife of eleven years, was also injured, resulting in her hospitalization. Upon her release from the hospital, Janet made arrangements for her deceased husband's visitation to take place on Tuesday, April 12, and the funeral on Wednesday, April 13. On Monday, April 11, she met with the family attorney to arrange the opening of a general administration of the decedent's estate. That same day, April 11, the former wife, Margaret, sought and obtained permission to serve as special administrator for a wrongful death action on behalf of the decedent. The next day, April 12, when Janet's attorney filed to have Janet appointed as the general administrator of the estate, he discovered that the court had already appointed Margaret as special administrator. Janet's counsel immediately filed an objection with the court, and requested that the court stay the proceedings. That same day the court enjoined all parties from any action related to the wrongful death claim and scheduled a hearing to address Janet's objection. At the hearing, after the parties declined the court's invitation that they serve as corepresentatives for the wrongful death claim, the court removed Margaret as the special administrator and appointed Janet in her place, making the following findings of fact:

1. Margaret Lewis filed her Petition with the Court four (4) days after the decedent's death and did not afford the decedent's widow an opportunity to respond. 2. The Court finds it erred when it appointed Margaret Lewis as Personal Representative of the Estate in that Janet Kaye Hammar as widow of the decedent is closer in proximity to the decedent and the Estate. 3. That [it] is in the best interest of the Estate that Janet Kaye Hammar serve as Personal Representative of the Estate. Appellant's App'x at 5. Margaret challenges the trial court order replacing her as special administrator in favor of Janet, arguing it was error for the court to order her removal without a supporting reason provided under the removal statute, Indiana Code

Download In Re Estate of Gary Hammar, Lewis v. Hammar.pdf

Indiana Law