Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017 Page 1 of 22

ATTORNEYS FOR APPELLANT

Karl L. Mulvaney

Gregory J. Duncan

Nana Quay-Smith

Bingham Greenebaum Doll LLP

Indianapolis, Indiana

Gerald H. McGlone

McGlone Law

Terre Haute, Indiana

ATTORNEYS FOR APPELLEE

Mark D. Hassler

Jacob H. Miller

Hunt, Hassler, Kondras & Miller LLP

Terre Haute, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Revocable 

Trust Agreement created by the 

Settlor, Anil Kumar Sarkar

Dipa Sarkar,

Appellant-Petitioner,

v.

Anuradha (“Mili”) Sarkar 

Naugle,

Appellee-Respondent

September 20, 2017

Court of Appeals Case No.

84A01-1701-TR-67

Appeal from the Vigo Superior Court

The Honorable David R. Bolk, Judge

Trial Court Cause No.

84D03-1503-TR-1438

Crone, Judge.
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Case Summary

[1] Eighty-six-year-old Dipa Sarkar, the surviving spouse of Anil Kumar Sarkar, 

appeals the trial court’s entry of summary judgment in favor of Anuradha 

Sarkar Naugle (“Mili”) as successor trustee of the Anil Kumar Sarkar 

Revocable Trust Agreement dated August 23, 1993 (“the Trust”). In short, at 

the time of Anil’s death, his probate estate had minimal assets because the 

lion’s share of his assets, totaling close to $2,000,000, had been placed in or 

diverted to the Trust. However, the Trust provided for Dipa, Anil’s wife of 

fifty-six years, to receive only $50,000 or roughly 2.5% of his total assets. 

Similarly, Anil’s will (“the Will”) made little provision for Dipa, bequeathing 

her only his clothes and tangible personal property while providing that the 

remaining assets, if any, be transferred to the Trust. 

[2] Dipa filed a petition to docket the Trust, which made numerous allegations

regarding the validity of the Trust as well as questions regarding the propriety of 

certain assets being diverted to the Trust (rather than to Dipa personally or to 

the probate estate) in an attempt to disinherit Dipa. Thereafter, while that 

proceeding was pending, Dipa filed an election to take against the Will. Mili 

subsequently moved for summary judgment on Dipa’s petition to docket the 

Trust, but she did not address Dipa’s election to take against the Will. Dipa 

then filed a motion for leave to file a second amended petition to docket the 

Trust, bringing her election to take against the Will to the trial court’s attention, 

and alleging more specifically her claims regarding the validity of the Trust. 

The trial court denied Dipa’s motion to amend, simply concluding that it would 
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be prejudicial to Mili to allow Dipa to amend her petition. The trial court made 

no statement as to the timeliness of Dipa’s election. Thereafter, the trial court 

entered summary judgment in favor of Mili on the narrow issue of whether the 

Trust was the proper beneficiary of a certain asset, and further declaring that 

such order disposed of all outstanding issues between the parties. The trial 

court failed to address Dipa’s election to take against the Will or the timeliness 

thereof. 

[3] On appeal, Dipa asserts that her election to take against the Will was timely, 

and because it is a statutory right of a surviving spouse, the trial court erred as a 

matter of law in failing to honor the election. We agree and conclude that: (1)

Dipa made a timely election to take against the Will; (2) the trial court abused 

its discretion in denying Dipa’s motion to amend her petition to docket the 

Trust; and (3) genuine issues of material fact remain, precluding summary 

judgment. Accordingly, we affirm in part, reverse in part, and remand for 

further proceedings. 

Facts and Procedural History1

[4] Anil and Dipa Sarkar were married in 1958, and remained married for fifty-six 

years until Anil’s death on February 24, 2015. They had one child, a daughter 

named Rumu. Anil had two children from a brief previous marriage, daughter 

 

1 Dipa’s statement of facts section of her brief is overly cumbersome and contains numerous facts that are 

meant to inflame our passions but are irrelevant to the issues on appeal. We remind Dipa’s counsel that the 

statements of facts section is to be limited to “the facts relevant to the issues presented.” Ind. Appellate Rule 

46(A)(6) (emphasis added).
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Mili, and son Ashoke. During their marriage, Anil and Dipa, who were both 

medical doctors, operated a private pathology practice in Terre Haute called 

Sarkar Medical Corporation.

[5] In 1993, Anil created the Trust, which was restated in its entirety on March 31, 

1997. The stated purpose of the Trust was “a simplified means of 

accomplishing both lifetime and death transfers” of Anil’s assets. Appellant’s 

App. Vol. 2 at 27. Anil amended the Trust seven times, with the seventh and 

final trust amendment occurring on March 14, 2014. From the original form 

through to the fourth amendment, Anil made no provision for distribution of 

any Trust assets to Dipa, stating “[b]ecause my spouse, [Dipa], has more assets 

than I have and will not need my money or property to support herself, I choose 

to leave nothing to her.” Id. at 35. Beginning with the fifth amendment 

through the final amendment, Anil provided for Dipa to receive $50,000. 

Specifically, in the final amendment, he named Mili as successor trustee and 

directed her to distribute $250,000 to Rumu, $30,000 to Ashoke, $50,000 to his 

brother Sekhar, and $50,000 to Dipa if she survived him by thirty days. The 

remainder of the Trust assets were to be distributed to Mili, or if she was then 

deceased, to her descendants per stirpes. Id. at 46.

[6] The Trust was funded by two investment accounts owned by Anil. One 

account, titled in the name of the Trust and held by Anil as trustee, consisted of 

stocks and bonds and was valued at $924,635 at the time of Anil’s death (“the 

Morgan Stanley Trust Account”). During his later years, Anil had his monthly 

social security payments diverted into the Morgan Stanley Trust Account. The 
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second account that funded the Trust was an Individual Retirement Account 

valued at $1,007,614 (“the IRA”). In December of 2003, Anil designated the 

Trust as the sole beneficiary of the IRA.

[7] On January 20, 2014, Anil executed the Will. In the Will, Anil appointed 

Rumu as personal representative and directed that his body be disposed of 

without ceremony of any kind. He directed that his probate estate should be 

used to pay all his debts, medical expenses, funeral expenses, estate 

administration expenses, and “all inheritance, estate, and like taxes ... payable 

by reason of [his] death and in connection with any property, whether passing 

under [the Will] or otherwise” without reimbursement from any person. Id. at

66. Anil made no provision for Dipa or his children in the Will other than 

stating that his clothing and tangible personal property would go to Dipa, if she 

survived him by thirty days; otherwise, the property would be transferred to the 

Trust. The Will provided that anything left in his net residuary estate would be 

transferred to the Trust.

[8] Shortly after Anil’s death, on March 10, 2015, Rumu filed a petition to probate 

the Will. The Will was admitted to probate and Rumu was appointed as 

personal representative the following day. Also on March 10, Dipa filed a 

“Petition to Docket Trust and for Relief.” Id. at 18. Dipa averred that: (1) the 

Will had been admitted to probate and provided that Anil’s residuary estate be 

distributed to the Trust; (2) at the time of Anil’s death, the couple had been 

married for fifty-six years; (3) on the date of Anil’s death, nearly all of his assets 

were owned by the Trust; (4) the Trust was created in 1993, restated in 1997, 
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and amended seven times; (5) one of the Trust assets consists of an IRA and 

because Dipa signed spousal consent regarding the beneficiary of the IRA under 

duress, the IRA should be removed from the Trust; (6) prior to his death, Anil 

diverted his social security payments to the Trust, which has left the probate 

estate with no assets.2 Based upon these facts, Dipa requested for the Trust to 

be docketed by the probate court and for her petition to be heard. She further 

requested the court to freeze the assets of the Trust and to remove the IRA from 

the Trust. The trial court set a hearing on Dipa’s petition for April 24, 2015.

[9] On March 20, 2015, Dipa filed a motion to remove Mili as trustee or require 

her to post a bond to ensure that she performed her duty to pay the estate’s 

unpaid claims and expenses. Dipa asserted that Anil’s probate estate was 

insolvent, and that the Trust was liable to pay the estate’s unpaid claims 

including funeral expenses, costs of administration, and Dipa’s surviving 

spouses’s allowance. Mili responded with a request for continuance of the 

April 24 hearing date. Following a telephonic hearing on April 21, 2015, the 

trial court entered an order docketing the Trust and continuing the April 24 

evidentiary hearing. The court ordered that the IRA assets be frozen and not 

distributed to the Trust, and that a pretrial conference (rather than an 

evidentiary hearing) be held on April 24 to clarify the issues. The trial court’s 

order did not address Dipa’s request to freeze the other assets of the Trust.

 

2 The record indicates that Dipa corrected a slight error and filed her first amended petition to docket the 

Trust on March 13, 2015. The first amended petition contains the same averments as the original.
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[10] On April 24, 2015, Dipa again filed a motion requesting that, in addition to the 

IRA, the Trust assets be frozen until the time for filing claims against Anil’s 

estate had expired. Dipa sought to ensure that the Trust retained sufficient 

assets to pay the estate’s pending claims, costs of administration, and surviving 

spouse’s allowance. On that same date, the trial court held an unrecorded 

pretrial conference. Regarding Dipa’s motion to freeze the Trust assets, counsel 

for both parties agreed to a distribution of 85% of the non-IRA Trust assets to 

the Trust’s beneficiaries. The remaining funds were not to be distributed “until 

such time as the Court determines which, if any, allowable claims and expenses 

of [the estate] shall be paid out of the Trust’s assets pursuant to applicable 

Indiana law.” Id. at 119. Dipa received $42,500 from the Trust.

[11] On May 29, 2015, Dipa filed a petition to collect her surviving spouse’s

statutory allowance from Anil’s probate estate pursuant to Indiana Code 

Section 29-1-4-1. Dipa alleged that the value of the estate was zero and thus the 

transferees of Anil’s nonprobate property (the Trust and its beneficiaries) were 

responsible to pay her claim. Mili, as trustee, objected to Dipa’s petition. The 

parties disagreed on numerous issues, including who should pay Anil’s funeral 

expenses and whether the Trust would be entitled to a setoff against Dipa’s 

spousal allowance for Dipa’s distribution as a beneficiary under the Trust. 

[12] On June 16, 2015, Rumu’s counsel filed a report advising the trial court that he 

had received a check for $64,569.58 from Terre Haute Savings Bank. He 

reported that this amount was the balance of two bank accounts Anil held at the 

bank. Counsel stated that he had known about the accounts but mistakenly 
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believed that they were Trust assets rather than estate assets, thus causing him 

to believe that the estate was insolvent. Because the estate was not insolvent, 

on that same date, Dipa filed her election to take against the Will pursuant to 

Indiana Code Section 29-1-3-1.

[13] Three months later, Mili filed a motion for summary judgment on Dipa’s 

petition to docket the Trust. Mili’s motion addressed only whether Dipa’s 

consent was necessary to effectuate Anil’s designation of the Trust as 

beneficiary of his IRA. Mili argued that there was no genuine issue of material 

fact that Dipa’s consent was not required, and therefore Dipa’s claim that she 

signed the consent under duress was irrelevant. Mili’s summary judgment 

motion did not address Dipa’s prior-filed election to take against the Will.

[14] Thereafter, Dipa’s counsel filed a motion to withdraw and new counsel entered 

an appearance on October 1, 2015. Dipa’s new counsel moved for, and was 

granted, continuances regarding the trial date, discovery cutoff, and the time for 

response to Mili’s summary judgment motion. On December 18, 2015, Dipa 

filed a motion for leave to file a second amended petition3to docket the Trust

pursuant to Indiana Trial Rule 15(A). The second amended petition brought 

Dipa’s prior-filed election to take against the Will to the trial court’s attention, 

and also alleged more specifically her claim regarding the validity of the Trust

and her request that the Trust assets be included in the probate estate for the 

 

3

See supra footnote 1. 
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purpose of calculating her elective share. Dipa’s motion to amend noted that 

no prejudice would result to either party from the granting of the petition. 

[15] Mili objected to the proposed amendment, arguing that it was futile because 

Dipa’s election against the Will was untimely pursuant to Indiana Code Section 

29-1-3-2(a), in that it was filed more than three months after the date of the 

order admitting the Will to probate. Dipa responded by arguing that her 

proposed amendment was not futile as her election was timely pursuant to 

Indiana Code Section 29-1-3-2(b), because at the time the election was filed, 

litigation was pending to determine a matter of law or fact which would affect 

the amount of Dipa’s elective share. 

[16] On July 13, 2016, the trial court entered its order denying Dipa’s motion to 

amend, and instructing Dipa to respond to Mili’s summary judgment motion 

regarding the narrow issue of the validity of the IRA beneficiary designation. 

In its order, the trial court mentioned Dipa’s election to take against the Will, 

but made no finding regarding the timeliness or untimeliness thereof. Instead, 

the trial court determined that allowing Dipa to “now assert[] a claim for 

spousal rights pursuant to IC § 29-1-3-1 ... is unduly prejudicial ....” Id. at 17. 

Dipa filed a motion to reconsider which was also subsequently denied by the 

trial court. After her request to certify the order for interlocutory appeal was 

denied by the trial court, Dipa responded to Mili’s motion for summary 
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judgment, focusing on her election to take against the Will and claiming a right 

to recover her elective share from the Trust assets.4 

[17] On December 16, 2016, the trial court entered summary judgment in favor of 

Mili concluding that the Trust was the proper beneficiary of the IRA. The trial 

court did not address Dipa’s election to take against the Will. The court 

declared that its entry of summary judgment resolved “all outstanding issues”

between the parties, and to the extent any unresolved “minor issues” remained, 

there was no just reason for delay and the court’s order constituted a final 

judgment. Id. at 14. 

[18] On January 9, 2017, Dipa filed a renewed election to take against the Will 

stating that a final judgment on all pending litigation was entered on December 

16, 2015, and that her renewed election was filed within thirty days of that 

judgment pursuant to Indiana Code Section 29-1-3-2(b). Mili filed a motion to 

strike the renewed election claiming it was untimely. The trial court granted 

Mili’s motion, concluding that the renewed election was “redundant and of no 

effect.” Appellant’s App. Vol. 6 at 31. This appeal ensued.

Discussion and Decision

[19] Dipa appeals the trial court’s entry of summary judgment. 

 

4 Dipa filed a cross-motion for summary judgment on October 14, 2016. However, the trial court 

subsequently struck Dipa’s motion as untimely and she does not challenge that conclusion on appeal.
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We review such rulings de novo. Pursuant to Indiana Trial Rule 

56(C), a summary judgment movant must make a prima facie 

showing that there are no genuine issues of material fact and that 

it is entitled to judgment as a matter of law. If the movant 

satisfies this burden, the nonmoving party may not rest on its 

pleadings, but must designate specific facts demonstrating the 

existence of a genuine issue for trial. A “genuine issue” is one 

upon which the parties proffer differing accounts of the truth, or 

as to which conflicting inferences may be drawn from the parties’

consistent accounts; a “material fact” is one that affects the 

outcome of the case. We must construe all evidence and resolve 

all doubts in favor of the non-moving party, so as to avoid 

improperly denying that party’s day in court. Summary judgment 

is not a summary trial, and it is inappropriate merely because the 

nonmoving party appears unlikely to prevail at trial. The party 

that lost in the trial court has the burden of persuading the 

appellate court that the trial court erred.

Morris v. Crain, 71 N.E.3d 871, 879 (Ind. Ct. App. 2017) (quoting Bah v. Mac’s 

Convenience Stores, LLC, 37 N.E.2d 539, 546 (Ind. Ct. App. 2015) (citations and 

some quotation marks omitted), trans denied (2016)). In addition, upon 

appellate review of summary judgment, questions of statutory interpretation are 

questions of law, which are reviewed on a de novo basis by appellate courts. 

Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind. 2014). 

Section 1 – Dipa made a timely election against the Will.

[20] In entering summary judgment in favor of Mili, the trial court ruled on the 

narrow issue of whether the Trust, rather than Dipa personally, was the proper 

beneficiary of the IRA. We do not disagree with the trial court’s determination 

of that narrow question, and we affirm partial summary judgment on that 
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issue.

5

 However, the trial court failed to acknowledge or address Dipa’s 

invocation of her right to take her elective share of Anil’s estate, and the effect 

that election has, or might have, on the assets of the Trust. Dipa asserts that the 

trial court erred as a matter of law in claiming to have resolved “all outstanding 

issues” between the parties, but failing to honor her election. Appellant’s App. 

Vol 2 at 14. Mili responds that the trial court properly did so because Dipa’s 

election to take against the Will was not timely filed and therefore was invalid. 

[21] It is well established that in Indiana, surviving spouses hold certain statutory 

rights upon the death of their spouse. Boetsma v. Boetsma, 768 N.E.2d 1016, 

1020 (Ind. Ct. App. 2002), trans. denied. Our statutory law protects a spouse

from being disinherited by providing a spousal allowance from their deceased 

spouse’s estate and the ability of the surviving spouse to take against the

provisions of the deceased spouse’s will, thus ensuring a certain degree of future 

support. Brown v. Guardianship of Brown, 775 N.E.2d 1164, 1167 (Ind. Ct. App. 

2002) (citing Ind. Code §§ 29-1-4-1 and 29-1-3-1). An election to take against a 

will is best described as a “right to take a statutory share of the deceased 

spouse’s real and personal property.” Dunnewind v. Cook, 697 N.E.2d 485, 488 

(Ind. Ct. App. 1998), trans. denied. Indeed, Indiana Code Section 29-1-3-1(a) 

provides in pertinent part:

When a married individual dies testate as to any part of the 

individual’s estate, the surviving spouse is entitled to take against 

 

5 Dipa does not directly challenge the trial court’s determination of this narrow issue.
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the will under the limitations and conditions stated in this 

chapter. The surviving spouse, upon electing to take against the 

will, is entitled to one-half (1⁄2) of the net personal and real estate 

of the testator. ....

In determining the net estate of a deceased spouse for the purpose 

of computing the amount due the surviving spouse electing to 

take against the will, the court shall consider only such property 

as would have passed under the laws of descent and distribution. 

An election to take the statutory share shall be in writing, signed and 

acknowledged by the surviving spouse, and shall be filed in the office of the 

clerk of the court. Ind. Code § 29-1-3-3(a).6 Regarding the time limitation for 

filing such election, our legislature has fixed the time in which a surviving 

spouse may elect to take against a will as follows:

(a) Except as provided in subsection (b), the election by a 

surviving spouse to take the share hereinbefore provided must be 

made not later than three (3) months after the date of the order 

admitting to probate the will against which the election is made.

(b) If, at the expiration of such period for making the election, 

litigation is pending to test the validity or determine the effect or 

construction of the will or to determine the existence of issue 

surviving the deceased, or to determine any other matter of law or fact 

which would affect the amount of the share to be received by the surviving 

spouse, the right of such surviving spouse to make an election 

 

6 Mili challenges only the timeliness of Dipa’s election. She makes no claim that the form or substance of 

Dipa’s election was somehow improper. See Ind. Code § 29-1-3-3(a) (providing form of election to take 

against will, including required acknowledgment, and directing clerk how to record same).
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shall not be barred until the expiration of thirty (30) days after the 

final determination of the litigation.

Ind. Code § 29-1-3-2 (emphasis added). This section extended the time 

permitted under the previous probate code in order “to give the surviving 

spouse an opportunity to determine the value of the estate before exercising his 

[or her] right of election.” See id. (Indiana Probate Code Study Commission 

1953 cmts. § 302).7

[22] The parties here agree that Dipa’s election to take against the Will, initially filed 

on June 16, 2015, was filed five days after the expiration of the three-month 

election period pursuant to Indiana Code Section 29-1-3-2(a). They disagree, 

however, as to whether the election was timely filed pursuant to what may 

properly be characterized as the saving provision in Indiana Code 29-1-3-2(b). 

Under the facts presented, we think there is no question that Dipa’s invocation 

of her statutory right was timely pursuant to subsection (b). This is because, as 

of June 11, 2015, there was litigation pending to determine matters of law or 

fact which would affect the amount of the share of Anil’s estate to be received 

by Dipa. 

 

7 Our supreme court has noted that in 1953, based upon the work of the Indiana Probate Code Study 

Commission and guided by the American Bar Association’s Model Probate Code, our General Assembly 

enacted “our state’s modern Probate Code, ‘the first major modification of Indiana law relating to the 

administration of decedents’ estates in more than half a century.’” Markey v. Estate of Markey, 38 N.E.3d 1003, 

1007 (Ind. 2015) (quoting Possession and Control of Estate Property During Administration: Indiana Probate Code 

Section 1301, 29 IND. L. J. 251, 252 (1954)).
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[23] Specifically, despite having entered into an agreed order disposing of some 

issues raised by Dipa’s original petition to docket the Trust, the parties were still 

embroiled in litigation disputing the Trust’s obligations to pay Anil’s funeral

expenses as well as Dipa’s $25,000 surviving spouse’s allowance under the Will. 

Questions remained as to whether Anil’s tangible personal property that was 

left to Dipa as part of the probate estate, and the value of which was unclear,

would be used to satisfy the estate’s expenses in the event it was determined 

that the Trust was not so obligated. Indeed, not only did the parties dispute the 

Trust’s obligations to the estate, but Mili also challenged the estate’s 

responsibility in the first place to pay some of the expenses based upon an 

alleged breach of fiduciary duty by Rumu as personal representative. 

Moreover, in addition to the IRA, a portion of the Trust’s non-IRA assets 

remained frozen at Dipa’s request, with the ultimate fate of those assets 

unknown as of June 11, 2015. These disputes undeniably could and would 

affect the value of the net probate estate and the amount of the elective share to 

be received by Dipa. 

[24] Mili asserts that none of the matters subject to the Trust litigation would have 

affected Dipa’s elective share as contemplated by subsection (b) because, as of 

June 11, 2015, the parties believed that the probate estate was essentially 

insolvent. We disagree. First, as stated above, the final value of the net probate 

estate had yet to be determined due to the outstanding issues that involved, at 

least to some extent, the ample assets of the Trust. Second, despite the parties’ 

belief, the probate estate was, in fact, not insolvent, as the later discovered funds 
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in two bank accounts titled in Anil’s name alone became part of the probate 

estate on the date of Anil’s death. See Ind. Code § 29-1-1-3(a)(24) (defining 

“Probate estate” as property transferred at death of decedent under decedent’s 

will or under Indiana Code Section 29-1-2). Thus, any unresolved litigation

regarding the obligations and expenses of a solvent estate would affect the 

amount of the surviving spouse’s elective share.

[25] Pursuant to the applicable statutory language, Dipa’s right to invoke her 

statutory election was not barred until the expiration of thirty days after the 

final determination of the Trust litigation, which did not occur until the trial 

court entered summary judgment on December 16, 2016.8 Accordingly, Dipa’s 

election to take against the Will made on June 16, 2015, was timely filed. 

Because Dipa timely invoked her statutory right to elect against the Will, the 

trial court erred when it entered summary judgment ignoring the election.

9

 

8 Having concluded that the election was timely filed based upon the pending litigation regarding Dipa’s 

original petition to docket the Trust, we need not address Dipa’s assertion that her second amended petition, 

(discussed in Section 2, infra) related back in time to the original petition pursuant to Indiana Trial Rule 

15(C), thus also satisfying the pending litigation requirement of Indiana Code 29-1-3-2(b). 

9 Although Mili focuses on the timeliness of Dipa’s election, she also implies that Dipa perhaps waived or at 

least should be precluded from pursuing her statutory right of election due to her original attorney’s 

“characterization” of her claims against the Trust during prior proceedings before the trial court as well as 

Dipa’s May 6, 2016, agreement to allow disbursement of a large portion of the Trust assets. Appellee’s Br. at 

24-25. However, Indiana Code Section 29-1-3-6 governs a surviving spouse’s waiver of the right to take 

against a will and provides in pertinent part:

The right of election of a surviving spouse ... may be waived before or after marriage by a 

written contract, agreement or waiver, signed by the party waiving the right of election, after full 

disclosure of the nature and extent of such right ....
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Section 2 – The trial court abused its discretion in denying 

Dipa’s motion to amend her petition to docket the Trust.

[26] Having determined that Dipa made a timely election to take against the Will, 

we turn to the related matter of the trial court’s denial of Dipa’s motion to 

amend her petition to docket the Trust to more specifically allege her claim 

against the Trust assets to satisfy her elective share. Indiana Trial Rule 15(A) 

governs the amendment of pleadings, providing in relevant part:

(A) Amendments. A party may amend his pleading once as a 

matter of course at any time before a responsive pleading is 

served or, if the pleading is one to which no responsive pleading 

is permitted, and the action has not been placed upon the trial 

calendar, he may so amend it at any time within thirty [30] days 

after it is served. Otherwise a party may amend his pleading only 

by leave of court or by written consent of the adverse party; and 

leave shall be given when justice so requires.

[27] It is well settled that although the trial court retains broad discretion in granting 

or denying amendments to pleadings, amendments should be liberally allowed, 

while giving proper regard for any prejudice to the nonmoving party. Hilliard v. 

Jacobs, 927 N.E.2d 393, 398 (Ind. Ct. App. 2010), trans. denied. We will reverse 

only upon a showing of an abuse of discretion. Id. An abuse of discretion 

occurs when the trial court’s decision is clearly against the logic and effect of 

 

Mili makes no claim that Dipa signed any agreement waiving her right of election after full disclosure of the 

nature and extent of such right. A waiver not complying with statutory requirements may not be enforced by 

the court. Bohnke v. Estate of Bohnke, 454 N.E.2d 446, 449 (Ind. Ct. App. 1983). Moreover, the fact that a 

large portion of the Trust assets had already been distributed by agreement of the parties, although not ideal, 

did not divest Dipa of the right to invoke her statutory election.
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the facts and circumstances before the court, or if the court has misinterpreted 

the law. Id. 

[28] Dipa’s original petition to docket the Trust made numerous allegations that, in 

accordance with our standards of notice pleading, put Mili on notice that the

validity of the Trust and Anil’s attempt to essentially disinherit her was at 

issue.

10

 As stated above, while that litigation was still pending, Dipa timely 

filed her election to take against the Will. The record indicates that three 

months after Dipa filed her election, Mili moved for summary judgment on 

Dipa’s petition to docket the Trust but did not address Dipa’s prior-filed 

election in her summary judgment motion. Thereafter, Dipa filed her motion 

for leave to file a second amended petition to docket the Trust to bring her 

election to the trial court’s attention, and to more specifically allege a claim 

against the Trust assets. In denying Dipa’s motion for leave to file her second 

amended petition, the trial court reasoned,

The Court believes that permitting [Dipa] to now amend the 

relief sought; to wit: to assert a claim for spousal rights pursuant 

to I.C. 29-1-3-1 against the Trust assets in addition to the attempt 

to set aside the transfer of the IRA, is unduly prejudicial and 

contrary to the interests of justice after extensive discovery has 

 

10 Indiana’s notice pleading rules do not require a pleading to adopt a specific legal theory of recovery to be 

adhered to throughout the case or require the complaint to state all elements of a cause of action. Shields v. 

Taylor, 976 N.E.2d 1237, 1244-45 (Ind. Ct. App. 2012). The notice pleading rules merely require that a 

pleading contain the operative facts so as to place the defendant on notice as to the evidence to be presented 

at trial. Id. at 1245. “A complaint’s allegations are sufficient if they put a reasonable person on notice as to 

why a plaintiff sues.” Id.
Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017 Page 19 of 22

been conducted, the Summary Judgment deadline has passed 

and the original trial date vacated. 

Appellant’s App. Vol. 2 at 17. 

[29] As this reasoning makes clear, the trial court denied Dipa’s motion to amend 

because it believed that allowing Dipa to assert her statutory right to election 

would cause undue prejudice to Mili. While we do not agree that the 

amendment is unduly prejudicial, we find that in denying the motion to amend, 

the court conflated its discretion to deny a motion to amend with a surviving 

spouse’s statutory right to timely elect to take against the will. Indeed, the trial 

court essentially placed a requirement upon Dipa that does not exist in the 

Probate Code, that is, to request trial court permission to assert her right of 

election. She need not do so. 

[30] In other words, Dipa was not required to assert her right of election in a 

pleading or in an amendment thereto. Dipa had no obligation to include her 

election in her initial petition to docket the Trust or to amend her petition to 

include the election, as her election was independent of these pleadings. Once 

her election was timely filed in the form required by statute, as we conclude it 

was, her election was self-effectuating. See Walker v. Lawson, 526 N.E.2d 968, 

970 (Ind. 1988) (noting that election to take against will is a “simple statutory 

election not subject to litigation.”); Miller v. Stephens, 158 Ind. 438, 849, 63 N.E.

847 (1902) (noting that right of election is “purely statutory” and conditioned 

only upon its “timely and solemn execution” as prescribed by the legislature). 
Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017 Page 20 of 22

[31] Under the circumstances presented, it is evident that the trial court 

misinterpreted the law in denying Dipa’s motion to amend. This 

misinterpretation, coupled with the stated policy of this Court and our supreme 

court “to freely allow such amendments in order to bring all matters at issue 

before the court” persuades us to conclude that an abuse of discretion occurred. 

Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 843 (Ind. Ct. App. 2016) 

(quoting Kreilein v. Common Council of City of Jasper, 980 N.E.2d 352, 358 (Ind. 

Ct. App. 2012)), trans. denied. As the impact of Dipa’s valid statutory election 

was an issue between the parties that needed to be addressed moving forward,

the trial court should have granted the motion to amend to bring all matters at 

issue before it. Thus, we conclude that the trial court abused its discretion in 

denying Dipa’s motion to amend her petition to docket the Trust.

Section 3 – Genuine issues of material fact remain regarding 

the validity of the Trust.

[32] Dipa maintains that while summary judgment in Mili’s favor was 

improvidently granted, summary judgment in her favor is appropriate.

Specifically, she contends that she is entitled to reach the assets in the Trust to 

satisfy her elective share as a matter of law. We think genuine issues of 

material fact remain.

[33] As already stated above, in determining the net estate of the deceased spouse 

for the purpose of computing the amount due the surviving spouse electing to 

take against the will, the court considers only such property as would have 

passed under the laws of descent and distribution. Ind. Code § 29-1-3-1(a). A 
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valid inter vivos trust does not pass under the laws of descent and distribution 

and thus does not become part of the decedent’s probate estate. Dunnewind, 697 

N.E.2d at 488-89. Accordingly, “there is no right in the surviving spouse to any 

of the assets of that trust to satisfy an elected distributive share at the settlor’s 

death.” Id. (quoting Leazenby v. Clinton Cty. Bank & Trust Co., 171 Ind. App. 

243, 248, 355 N.E.2d 861, 864 (1976)). 

[34] An invalid inter vivos trust, however, such as one which is testamentary in 

effect, will not withstand a surviving spouse’s election. Id. at 490. Indeed,

“[w]hen a testator executes a trust in contemplation of his impending death and 

does so in order to defeat the surviving spouse’s statutory share, the trust will be 

considered testamentary in nature and will not defeat the spouse’s share.” In re 

Estate of Weitzman, 724 N.E.2d 1120, 1123 (Ind. Ct. App. 2000). In other 

words, a settlor may not devise a means to defeat his spouse’s elective share in 

contemplation of his death. Dunnewind, 697 N.E.2d at 489.

[35] The question of whether a testator has established a trust in contemplation of 

death and with the intent of defeating his surviving spouse’s statutory share is a 

fact-sensitive inquiry. See Estate of Weitzman, 724 N.E.2d at 1124. This is a 

question that the trial court has not yet considered, and one that the parties 

have not had a full opportunity to explore. Contrary to Dipa’s arguments, she 

is not somehow automatically entitled to invade the Trust assets to satisfy her 

statutory election simply because we have found her election timely and 

permitted her proposed second amended petition. As noted by Mili, Dipa 

conceded in her motion to reconsider that at least some additional discovery 
Court of Appeals of Indiana | Opinion 84A01-1701-TR-67 | September 20, 2017 Page 22 of 22

would be necessary by both parties in the event she was permitted to amend her 

petition to docket the Trust. Appellant’s App. Vol. 3 at 158. We agree with 

Mili that genuine issues of material fact remain, thus precluding summary 

judgment.

[36] In sum, we affirm partial summary judgment on the narrow issue determined 

by the trial court that the Trust is the proper beneficiary of the IRA. We 

conclude that Dipa made a timely election against the Will, and that the trial 

court abused its discretion in denying her motion to amend her petition to 

docket the Trust to bring all issues between the parties before the court. 

Because genuine issues of material fact remain regarding the impact of the 

timely statutory election on the Trust assets, we remand for further proceedings 

consistent with this opinion.

[37] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Mathias, J., concur.