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ATTORNEYS FOR APPELLANTS Janice E. Smith John A. Cremer Michael P. Bishop Indianapolis, Indiana

ATTORNEY FOR APPELLEE Robert W. York Indianapolis, Indiana

______________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 49S05-1102-PL-76 ROD L. AVERY AND MARSHALL K. AVERY, v. TRINA R. AVERY,

In the

FILED
of the supreme court, court of appeals and tax court

Sep 20 2011, 10:47 am

CLERK

Appellants (Defendants below),

Appellee (Plaintiff below). _________________________________

Appeal from the Marion Superior Court, No. 49D08-1002-PL-4558 The Honorable Tanya Walton Pratt, Judge _________________________________ On Transfer from the Indiana Court of Appeals, No. 49A05-1004-PL-320 _________________________________ September 20, 2011 Dickson, Justice.

Contending that the filing of an answer as required by Indiana Trial Rule 7 is not required in a will contest action, the defendants-appellants are challenging the default judgment entered against them in the trial court. The Court of Appeals affirmed. Avery v. Avery, 932 N.E.2d 1280 (Ind. Ct. App. 2010). We agree. The Indiana Trial Rules apply to will contest actions, and the failure to file an answer or responsive pleading in accordance with Trial Rule 7 may result in a default judgment.

Following the death of Mary Louise Avery in April 2009, her daughter, Trina Avery, opened a supervised estate and received appointment as the personal representative. On Decem-

ber 30, 2009, two of the decedent's sons, Rod and Marshall Avery, filed a petition in the probate estate to remove their sister as the personal representative and to probate their mother's will dated November 14, 2008 that named Rod Avery as the personal representative. The probate court admitted the will to probate and scheduled a hearing on the petition for removal and replacement of the personal representative. On February 1, 2010, Trina Avery filed a separate action to contest the 2008 will, asserting that it was the product of undue influence, fraud, and duress, and that the decedent had executed a subsequent will on January 14, 2009, which superseded and revoked the 2008 will. Notice was provided to the various defendants, which included Rod and Marshall Avery. The summons informed the defendants: An answer or other appropriate response in writing to the Complaint must be filed either by you or your attorney within twenty (20) days, commencing the day after you receive this Summons, (or twenty-three (23) days if this Summons was received by mail), or a judgment by default may be rendered against you for the relief demanded by Plaintiff. Appellee's App'x at 4. When none of the defendants filed an answer or other responsive pleading, the daughter moved for default judgment on March 10, 2010. Defendants Rod and Marshall Avery filed a motion to dismiss the motion for default judgment, asserting that an answer is not required in a will contest action. The court denied the motion to dismiss and entered judgment by default against all the defendants, stating that the "Trial Rules and case law require an Answer in Will Contest[s]." Appellants' App'x at 74. The defendants did not seek relief from the judgment but challenged its validity on appeal. In this appeal, the defendants contend that they were not required to file an answer in the will contest action. They argue that a will contest, as a statutorily created cause of action, must be brought in accordance with the statutory provisions, which do not explicitly mandate the filing of an answer, and thus that the failure to file an answer cannot be the basis for default judgment. The applicable statutory provision, Indiana Code

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