Preview:

ATTORNEYS FOR APPELLANT Alan N. Shovers Elizabeth A. Browning Kevin R. Martin Evansville, Indiana

ATTORNEYS FOR APPELLEE John Burley Scales Frank R. Hahn Boonville, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 82S04-0510-CV-488 UNIVERSITY OF SOUTHERN INDIANA FOUNDATION, Appellant, v. RICHARD A. BAKER AND INTEGRA BANK N.A. TRUST AND INVESTMENT MANAGEMENT GROUP, Appellees. _________________________________ Appeal from the Vanderburgh Superior Court, No. 82D07-0403-TR-00112 The Honorable Terrell R. Maurer, Magistrate _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 82A04-0411-CV-592 _________________________________ March 14, 2006 Boehm, Justice. We hold that the trust created by Marian Boelson left her tangible personal property and any interest she retained in her individual retirement accounts to her brother and gave the remaining assets to the University of Southern Indiana Foundation.

Factual and Procedural History In 1996 Marian Boelson created an inter vivos trust. Section 7 expressly declined to make any provision for Boelson's brother, Richard Baker, or any other potential intestate heirs. Section 8 provided a bequest of $50,000 to Faye Rucks, a friend of Boelson's, and Section 9 left the residue to the University of Southern Indiana Foundation ("USIF"). In August 2001, Boel-

son amended the trust, revoking Sections 7 and 8 and replacing them with new Sections 7 and 8: 7. Upon the death of Trustor, the Trustor's brother, Richard A. Baker, if living, shall receive any and all proceeds and assets that were held in Trustor's individual retirement accounts, if any, as well as, all of Trustor's automobiles, furnishings and other personal property. 8. After payment of [expenses of trust administration], the Trustee shall distribute to Trustor's friend, Faye Rucks, presently residing at 850 Cherokee Road, Henderson, Kentucky, the sum of Ten Thousand Dollars ($10,000.00), if living, and if not living, then said funds shall become part of the residue of the Trust and be distributed according to the terms and conditions set forth in Section 9 of this Trust Agreement. No other substantial changes were made and the provision in Section 9 leaving the residue to USIF remained unchanged. Boelson died on August 29, 2003, leaving a will that poured her assets over into the trust. At death Boelson owned a condominium in Indiana, a one-acre lot in Florida, bank accounts, certificates of deposit, treasury notes, bonds, and two individual retirement accounts in which her brother was the designated beneficiary. There was also an automobile and tangible personal property (furniture, etc.) in the condominium. Following Boelson's death, the trustee petitioned for an interpretation of the amended trust. No one challenged the $10,000 provision for Rucks, but Baker and USIF disagreed as to the disposition of the remaining assets. Baker alleged he was the beneficiary of all of the remaining personal property, and that USIF was the beneficiary of Boelson's real property only. USIF responded that the trust left Boelson's "personal effects" to Baker but gave all of Boelson's real property and all intangible personal property to USIF. USIF moved for summary judgment, designating the following affidavits and exhibits: (1) the affidavit of Boelson's attorney stating that "my understanding [was] that Mrs. Boelson intended for her brother to receive the personal property located in her residence;" (2) the affidavit of Boelson's trustee stating that Boelson told the trustee that Boelson hoped she would live long enough to see the gift to USIF grow to be 2

worth one million dollars; (3) the affidavit of Boelson's companion stating that Boelson had told him shortly before her death that after her death, USIF would receive almost all of Boelson's property, including her stocks; (4) typed instructions given by Boelson to her attorney which state, "Brother is beneficiary of and to receive two IRA accounts, automobile and any furnishings and personal property in the condo that he would like;" and (5) Boelson's attorney's handwritten notes stating "3. Item 7

Download University of Southern Indiana Foundation v. Richard A. Baker and Integra Bank N

Indiana Law