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FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: TERRY K. HIESTAND SARAH A. LAWSON Hiestand Law Office Chesterton, Indiana ATTORNEYS FOR APPELLEES: MAGGIE L. SMITH Locke Reynolds, LLP Indianapolis, Indiana GREG S. GORDON Dale & Eke, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSEPH GAST, EMMETT FITZGERALD, PATTY EGOLF, Appellants-Plaintiffs, vs. JOHN THOMAS HALL, Individually and JOHN THOMAS HALL, as Executor of the Will of Joseph Fitzgerald, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 64A03-0511-CV-531

APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Roger V. Bradford, Judge The Honorable James A. Johnson, Magistrate Cause No. 64D01-0301-ES-478

December 11, 2006 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Joseph Gast ("Gast"), Emmett Fitzgerald ("Fitzgerald"), and Patty Egolf ("Egolf") (collectively "Plaintiffs") appeal the trial court's grant of summary judgment in favor of defendant John Hall ("Hall"), individually and as the Executor of the Will of Joseph Fitzgerald, in their action to contest Joseph Fitzgerald's 2002 will. In ruling on the motion for summary judgment, the trial court found that portions of one witness's affidavit violate the "privilege and confidentiality of mediation" and that the affidavit of an attorney who did work for Joseph Fitzgerald but did not draw his 2002 will violates the attorney-client privilege. We conclude that Alternative Dispute Resolution Rule 2.11, concerning mediation confidentiality, does not bar evidence offered to prove that a person lacked testamentary capacity, because such evidence is offered for a purpose other than to prove liability for or invalidity of the claim being mediated or its amount. Furthermore, the "testamentary exception" to the attorney-client privilege, which allows the attorney who drafted an executed will to reveal client communications after the client's death in a suit between the testator's heirs, devisees, or other parties who claim under him or her, does not apply to attorneys who communicated with the testator before the testator's death but played no role in drafting the executed will. Having resolved these evidentiary issues, we reverse the trial court's grant of summary judgment in favor of Hall on Plaintiffs' claims that Joseph Fitzgerald lacked testamentary capacity when he executed his 2002 will and that Hall exerted undue influence over Uncle Joe. Therefore, we remand this cause to the trial court for further proceedings consistent with this opinion. 2

Facts and Procedural History 1 John Fitzgerald ("Uncle John") and Joe Fitzgerald ("Uncle Joe") were brothers who never married and lived together all their lives on a farm owned by Uncle John. Uncle John and Uncle Joe raised Hall, their nephew, in their house for much of Hall's childhood. After Hall married, he moved into a house owned by Uncle Joe that was located across the street from the house in which he was raised and where Uncle John and Uncle Joe still lived. Hall lived in this house with his wife and children for most of his adult life. According to Hall, he and Uncle Joe had a strained relationship for some time. Uncle Joe executed a will on June 19, 1997 ("1997 will"), under which Hall was not a beneficiary. Uncle John died on March 9, 2002, and Hall filed and admitted to probate a will executed by Uncle John on April 18, 1994, which left all of Uncle John's property to Hall. Uncle Joe filed a will contest ("First Will Contest"), alleging that the 1994 will was superceded by a will executed on March 7, 1995, which left all of Uncle John's property to Uncle Joe, but if Uncle Joe did not survive Uncle John by thirty (30) days, then to Hall. As part of this will contest, Uncle Joe and Hall attended a full-day mediation on September 11, 2002. Also in attendance at the mediation were John Casson ("Casson"), who had been helping Uncle Joe with his business matters since 2001, and Attorney Herbert Douglas ("Attorney Douglas"), whom Uncle Joe had retained to represent him in

Hall has filed a motion to file the affidavit of Richard Rupcich, one of his attorneys at the trial court level, under seal with this Court for the reason that it contains "attorney-client privileged matters." Appellees' Verified Reply in Support of Their Motion to File Affidavit Under Seal p. 2. We find that nothing in the affidavit falls within the attorney-client privilege. Therefore, we deny Hall's motion.

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the will contest. No agreement was reached during the mediation session. 2 However, after the mediation the tension between Hall and Uncle Joe subsided. They continued to work to settle the First Will Contest, and Hall began helping Uncle Joe with his day-today activities, including driving him places he needed to go. At some point, Uncle Joe informed Attorney Douglas that he wished to leave all of his assets to Hall. Thereafter, on November 22, 2002, Attorney Douglas's partner, Brian J. Hurley, filed a Petition for Appointment of Guardian Ad Litem, asking the trial court to appoint a guardian to advise and assist Uncle Joe in determining his best interests in the First Will Contest. The trial court granted the petition, finding that Uncle Joe was "not adequately represented" and needed assistance "in determining his best interests." Appellants' App. p. 106. That same day, Hall drove Uncle Joe to the office of Attorney Dan Berning ("Attorney Berning"), but Hall did not go into the office. Uncle Joe's Client Information Sheet states that Hall referred Uncle Joe to Attorney Berning. Attorney Berning drafted a new will for Uncle Joe that left all of Uncle Joe's property to Hall and named Hall as personal representative, which Uncle Joe signed three days later on November 25, 2002 ("2002 will"). Hall then made an appointment for Uncle Joe to be evaluated by psychologist Stanley Lelek ("Lelek"). Hall drove Uncle Joe to Lelek's office on November 27, 2002, and was present in the room during the evaluation. Uncle Joe told Lelek that he was undergoing the evaluation because "he executed a WILL that may (in the future) be contested." Id. at 60. Lelek concluded that Uncle Joe suffered short-term memory deficiency but "ha[d] the capacity to take care of himself." Id.
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As of the time of the filing of Appellants' Brief on January 3, 2006, the First Will Contest was still pending.

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Uncle Joe died in January 2003.

Hall submitted the 2002 will prepared by

Attorney Berning to the trial court and was appointed personal representative of Uncle Joe's estate. Plaintiffs, relatives of Uncle Joe and beneficiaries under the 1997 will, filed a will contest ("Second Will Contest"), alleging that the 2002 will is invalid because: (1) Uncle Joe was of unsound mind; (2) Hall imposed undue influence on Uncle Joe; (3) Uncle Joe executed the will under duress; or (4) the execution of the will was obtained by fraud. See id. at 22-23. Hall filed his Motion for Summary Judgment and Designation of Evidence in the Second Will Contest on November 26, 2003. In response, Plaintiffs filed, among other documents, the affidavits of Casson and Douglas and excerpts of the deposition of Hall. Hall moved to strike the affidavits of Casson and Douglas, arguing that they violate: (1) the privilege and confidentiality of mediation; (2) the attorney-client privilege; (3) the Indiana Rules of Professional Conduct; and (4) Indiana Trial Rule 56(E). Hall also moved to strike the portions of his own deposition that Plaintiffs had designated, contending that he was incompetent to testify according to Indiana's Dead Man's Statutes. 3 See Ind. Code

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