FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

JOHN M. SAYRE, III GREGG S. GORDON

Gardner, Sayre & Weikart Cremer & Cremer

Richmond, Indiana McCordsville, Indiana

JOHN A. CREMER

Cremer & Cremer

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DAVID J. MARKEY, )

)

Appellant-Plaintiff, )

)

vs. ) No. 89A05-1402-ES-62

)

ESTATE OF FRANCES S. MARKEY, )

DECEASED; STEPHEN L. ROUTSON, )

PERSONAL REPRESENTATIVE UNDER )

THE LAST WILL AND TESTAMENT OF )

FRANCES S. MARKEY, DECEASED; )

STEPHEN L. ROUTSON, INDIVIDUALLY; )

AND MADONNA L. REDA, )

)

Appellees-Defendants. )

APPEAL FROM THE WAYNE SUPERIOR COURT

The Honorable Charles K. Todd, Jr., Judge

Cause No. 89D01-1208-ES-51

July 9, 2014
2

OPINION–FOR PUBLICATION

BAKER, Judge 

In this case we are asked to clarify the time limit within which an action for a 

breach of contract to make a will must be filed. Here, appellant-plaintiff David Markey 

appeals the trial court’s grant of summary judgment in favor of appellee-defendant the 

Estate of Frances Markey regarding his claim that Frances had violated a contract with 

Markey’s Father to make mutual wills. Markey argues that summary judgment was 

inappropriate because he timely filed his action within nine months of Frances’s death. 

Markey also contends that applying the three-month limitation period for will contest 

actions would violate his due process rights and maintains that the trial court improperly 

determined a disputed issue of fact. Conversely, the Estate argues that Markey’s action 

to enforce a contract to make a will is not a “claim” as defined in Indiana Code section 

29-1-14-1 of the Probate Code and that his action is governed by a three-month time 

limitation. We find that a three-month period of limitation applies to Markey’s action and 

that there is no genuine issue of material fact. Therefore, we affirm the judgment of the 

trial court. 

FACTS

Markey is the son and only child of John Markey (Father) and Betty Porter 

Markey (Mother). In 1987, Mother developed Alzheimer’s disease, and, in 1989, she 

went to live in a nursing home in Dayton, Ohio. Father began a relationship with Frances 
3

around this time. In 1991, Frances moved into Father’s and Mother’s home at Lake 

Lakengren, Ohio. Prior to Mother’s transfer to a nursing home in Richmond, Indiana in 

1992, substantial assets that Mother had inherited from her parents were transferred to 

Father. On August 1, 1998, Mother passed away. On August 24, 1998, Father and 

Frances married. Frances had two children at the time of the marriage, now Stephen 

Routson (Stephen) and Madonna Reda (Madonna). 

On September 16, 1998, Father and Frances executed a contract to make mutual 

wills (the contract). The contract specified that Father and Frances would both execute 

wills providing that on the death of Father or Frances−whichever was later−half of the 

decedent’s estate would be divided equally between Markey and Gillian Treadwell 

(Gillian), Frances’s granddaughter. The contract further provided that the wills would

not be revoked and that, in the event of a revocation, Markey would be entitled to bring 

an action at law or in equity seeking specific performance. Father and Frances executed 

wills adhering to the contract the same day the contract was executed. At some point in 

1998 or 1999, Father gave a copy of the wills and the contract to Markey. Although they 

stipulated to the existence of the contract for purposes of summary judgment, Stephen 

and Madonna stated that they were unaware of the contract. 

Father died on March 13, 2008 without revoking the will made in 1998, and all his 

assets passed to Frances. Markey maintained a relationship with Frances until October 

17, 2009, when she communicated to him that she was no longer interested in continuing 

their relationship and that she did not wish to hear from him again. 
4

On May 25, 2010, Frances executed a subsequent will, which revoked the will 

made pursuant to the 1998 contract with Father. Markey was unaware of this will. 

Frances died on July 29, 2012. As Markey knew about the contract to make mutual wills, 

he periodically searched for information about Frances; specifically, he searched for her 

obituary. Nevertheless, Markey states that he did not discover that Frances had died until 

April 25, 2013. 

Frances’s Estate was opened August 22, 2012. The proof of publication was filed 

on October 1, 2012; it confirmed that notice of administration was published of the 

opening of the Estate in the Western Wayne News on September 5 and September 12, 

2012. 

On April 29, 2013, Markey brought an action to enforce the terms of the contract 

against the Estate, Stephen as personal representative of the Estate, and Stephen and 

Madonna individually as sole beneficiaries of the estate. This was eight months after 

Frances’s will was admitted to probate. 

On May 23, 2013, Madonna filed her answer and motion for summary judgment 

for the Estate, arguing that Markey’s action was time-barred because it was filed more 

than three months after Frances’s will was admitted to probate. For purposes of the 

summary judgment motion, the parties stipulated 1) that Father and Frances had signed a 

contract to make mutual wills; 2) that Frances took title to all Father’s assets consistent 

with his 1998 will, and 3) that Frances, contrary to the terms of the contract to make 

mutual wills, executed a new will in May 2010. 
5

Markey filed a motion for enlargement of time to file his summary judgment 

response on June 11, 2013, which the trial court approved. Markey filed a second motion 

for enlargement of time to file his summary judgment response on July 30, 2013. In the 

second motion, he stated that Madonna refused to sit for a deposition and that he had 

failed, despite several attempts, to locate Gillian, Madonna’s adult daughter who would 

have been Markey’s co-beneficiary under the contract. Madonna’s counsel verified 

Gillian’s address, and Markey, who had received no response to inquiries sent to that 

address, then filed a petition for letters rogatory and commission to conduct out-of-state 

non-party discovery to obtain a subpoena to depose Gillian. However, on August 27, 

2013, before Markey was able to depose Gillian, the trial court determined that Markey 

could properly respond to Madonna’s summary judgment motion without further 

discovery.

In his response to Madonna’s summary judgment motion, Markey argued that he 

had timely filed his action within nine months of the decedent’s death. He stated that 

because he was a “reasonably ascertainable creditor” under Indiana Code section 29-1-7-

7(d)(2), he was entitled to actual notice of the opening of the Estate. Indiana Code 

section 29-1-7-7(d)(2) provides that a reasonably ascertainable creditor with a claim is 

entitled to actual notice from the personal representative; if they do not receive such 

notice, the time limitation for filing is extended to nine months from the date of the 

decedent’s death under Indiana Code section 29-1-7-7(e). 
6

On October 24, 2013, the trial court held a hearing on Madonna’s summary 

judgment motion. At the hearing, Madonna’s attorney stated that it was “undisputed that 

none of the defendants knew about the alleged contract prior to being served with a copy 

of plaintiff’s complaint.” Tr. p. 5 -6. Markey’s counsel responded that knowledge of the 

contract was a disputed issue of fact. 

On January 24, 2014, the trial court granted Madonna’s motion for summary 

judgment, determining that this Court’s decision in Keenan v. Butler, 869 N.E.2d 1284 

(Ind. Ct. App. 2007), was controlling. The trial court noted that, in Keenan, we held that 

an action to enforce a contract to make a will was not a “claim” under Indiana Code 

section 29-1-14-1 of the Probate Code. Further, the trial court held that a footnote in the 

Keenan case was determinative of Markey’s action; specifically, the footnote stated that, 

“[f]or timely administration of an estate, a breach of contract to make a will action should 

similarly be limited. Where the action is challenging the distribution pursuant to a 

probated will, the petition must be filed within three months of the order admitting the 

will to probate.” 869 N.E.2d at 1290 n. 6. The trial court found that: 

Footnote [six] of the opinion, whether binding or not, is logical in light of 

the body of the Keenan opinion, and is persuasive. In essence, similar to 

Keenan, Markey’s action is challenging the distribution pursuant to a 

probate will of remaining or net assets after payment of claims. Thus, this 

Court also finds that for timely administration of an estate, a breach of 

contract regarding mutual wills should be limited to three (3) months from 

the order admitting a will to probate. For the reasons stated in Keenan, 

such a challenge is most analogous to a will contest action, which affects 

the distribution of estate assets rather than the value. 

Appellant’s App. p. 20-21. 
7

Markey now appeals. 

DISCUSSION AND DECISION

I. Standard of Review

When we review the grant or denial of a summary judgment motion, we apply the 

same standard as the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4–5 (Ind. 2010). 

Summary judgment is appropriate only where the evidence shows that no genuine issue 

of material fact exists and the moving party is entitled to judgment as a matter of law. 

Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are 

construed in favor of the nonmoving party, and all doubts concerning the existence of a 

material issue must be resolved against the non-moving party. Id. Nevertheless, the trial 

court’s grant of summary judgment “enters appellate review clothed with a presumption 

of validity,” and the appellant bears the burden of demonstrating that the trial court erred. 

Trustcorp Mortg. Co. v. Metro Mortg. Co. Inc., 867 N.E.2d 203, 211 (Ind. Ct. App. 

2007).

II. Time for Filing

Markey argues that his action was timely filed within nine months of Frances’s 

death. Asserting that his action is a “claim” under Indiana Code section 29-1-14-1 of the 

Probate Code, Markey maintains that, as a reasonably ascertainable creditor, he was 

entitled to actual notice. Appellant’s Br. p. 12.
8

Indiana Code section 29-1-14-1(a)(1) states that: 

Except as provided in IC 29-1-7-7, all claims against a decedent’s estate, 

other than expenses of administration and claims of the United States, the 

state, or a subdivision of the state, whether due or to become due, absolute 

or contingent, liquidated or unliquidated, founded on contract or otherwise, 

shall be forever barred against the estate, the personal representative, the 

heirs, devisees, and legatees of the decedent, unless filed with the court in 

which such estate is being administered within . . . three months after the 

date of the first published notice to creditors. 

However, Markey claims that he comes within an exception to this rule under 

Indiana Code section 29-1-7-7(d), which provides that: 

The personal representative or the personal representative’s agent shall 

serve notice on each creditor of the decedent:

(1) whose name is not set forth in the petition for probate or letters 

under subsection (c);

(2) who is known or reasonably ascertainable within one (1) month 

after the first publication of notice under subsection (a); and

(3) whose claim has not been paid or settled by the personal 

representative.

If such actual notice is not provided, Indiana Code section 29-1-7-7(e) states that: 

If the personal representative or the personal representative’s agent fails to 

give notice to a known or reasonably ascertainable creditor of the decedent 

under subsection (d) within one (1) month after the first publication of

notice under subsection (a), the period during which the creditor may 

submit a claim against the estate includes an additional period ending two 

(2) months after the date notice is given to the creditor under subsection (d). 

However, a claim filed under IC 29-1-14-1(a) more than nine (9) months 

after the death of the decedent is barred.

In other words, if a reasonably ascertainable creditor is not given actual notice, that 

creditor has nine months from the death of the decedent to file a claim against the estate. 
9

Markey argues that he is a reasonably ascertainable creditor and maintains that the 

trial court erred in granting summary judgment, as whether he is indeed a reasonably 

ascertainable creditor is a genuine issue of material fact. 

The trial court, however, determined that Keenan applied to Markey’s action and 

found that Indiana Code sections 29-1-14-1 and 29-1-7-7 did not apply to Markey’s 

action, as it was not a “claim” as contemplated by those sections. Appellant’s App. p. 21. 

The trial court included this summary of the Keenan case in its findings: 

In Keenan, supra, the Personal Representative of the estate filed a motion to 

dismiss a breach of contract action filed against [the] estate by descendants 

of decedent’s wife, who alleged decedent breached an oral contract with 

wife to make a will leaving the majority of the estate to wife’s descendants. 

The trial court denied the motion and the Personal Representative appealed. 

The Indiana Court of Appeals reversed and remanded, holding, in 

summarized form, that an action against the decedent’s estate for breach of 

an oral contract to make a will did not constitute a claim under [the] 

nonclaim section of [the] Probate Code, nor did it constitute a will contest 

action . . .” 

Appellant’s App. p. 17. As the trial court determined that Markey’s action was not a claim, 

regardless of whether or not Markey was a reasonably ascertainable creditor, his action was 

not eligible for the nine-month limitation period for filing.

The trial court also pointed to a footnote in Keenan that stated: 

We have not been asked to decide whether there is a time limit within 

which an action for breach of contract to make a will must be filed. 

However, statutes of repose, here limiting the time to file to three months, 

govern both claims and will contests. See I.C. §§ 29–1–7–17 and 29–1–14–

1. For timely administration of an estate, a breach of contract to make a will 

action should similarly be limited. Where the action is challenging the 

distribution pursuant to a probated will, the petition must be filed within 

three months of the order admitting the will to probate. 
10

869 N.E.2d at 1290 n. 6 (emphasis added). The trial court determined that the footnote, 

whether or not it was binding precedent, was logical in light of the body of the Keenan

opinion and determined that it applied to Markey’s action to enforce a contract to make 

mutual wills. 

We agree with the trial court that the footnote in Keenan is directly applicable in a 

case such as Markey’s, which concerns an action to enforce a contract to make a will. 

Therefore, we find that the trial court correctly determined that the three-month limitation 

period for such actions suggested in footnote six of Keenan applied to Markey’s action. 

III. Due Process

Markey also argues that a three-month limitation period for will contest actions 

would violate his due process rights. He maintains that his action, whether or not it is a 

claim, is a property interest and that he was entitled to actual notice of the Estate opening. 

Appellant’s App. p. 19. 

“The Fourteenth Amendment prohibits any state from depriving ‘any person of 

life, liberty, or property, without due process of law.’ Thus, one claiming a violation of 

due process must show 1) that there has been state action and 2) that a protected property 

interest is involved. Matter of Estate of Wilson, 610 N.E.2d 851, 856 (Ind. Ct. App. 

1993). Markey argues that the three-month limitation period as applied to his action 

constitutes state action for the purposes of due process because legal proceedings trigger 

the time bar. In such circumstances, the United States Supreme Court has stated that 
11

“due process is directly implicated and actual notice required.” Tulsa Prof’l Collection 

Servs., Inc. v. Pope, 485 U.S. 478, 487 (1988); see also Estate of Decker v. Farm Credit 

Servs. of Mid-Am., ACA, 684 N.E.2d 1137, 1140 n. 4 (Ind. 1997) (quoting the holding in 

Pope that “[w]here the legal proceedings themselves trigger the time bar, even if those 

proceedings do not necessarily resolve the claim on its merits, the time bar lacks the selfexecuting feature . . . necessary to remove any due process problem.”). 

Here, Markey argues that Indiana Code section 29-1-7-17, which states that “[a]ny 

interested person may contest the validity of any will in the court having jurisdiction over 

the probate of the will within three (3) months after the date of the order admitting the 

will to probate,” is not self-executing because legal proceedings trigger the time 

limitation. 

While Markey concedes that the right to contest a will is not a property interest for 

due process considerations and states that the three-month limitation for filing a will 

contest does not violate due process when applied to will contest actions generally, he 

maintains that applying the three-month limitation to his action, which he claims is a 

property interest, would violate due process. 

While we agree with Markey that State action is implicated by the three-month 

limitation for will contests, we find that he was not entitled to actual notice or extended 

time for filing. In footnote six of Keenan, this Court noted that, under Indiana Code 

sections 29-1-7-17 and 29-1-14-1, both claims and will contests are limited to a threemonth time for filing and stated that “For timely administration of an estate, a breach of 
12

contract to make a will action should similarly be limited. Where the action is 

challenging the distribution pursuant to a probated will, the petition must be filed within 

three months of the order admitting the will to probate.” 869 N.E.2d at 1290 n.6. We 

agree with the trial court’s determination that Keenan applied to Markey’s action and that 

“notice was provided by publication on September 5 and 12, 2012, and the undisputed 

evidence does not support any other required notice to Markey.” Appellant’s App. p. 21. 

Therefore, Markey’s due process argument fails. 

IV. Disputed Issue of Fact

Markey also argues that the trial court improperly determined a disputed issue of 

fact when it made “an implicit factual determination” that Markey was not a reasonably 

ascertainable creditor under Indiana Code section 29-1-7-7(d)(2) and, therefore, was not 

entitled to actual notice.1 Appellant’s Br. p. 22. 

Markey argues the trial court erred in its implicit determination that he was not a 

reasonably ascertainable creditor because it limited his discovery and based its 

determination on its findings that “[i]t is undisputed that Stephen Routson and Madonna 

Reda did not learn of the contract until after [Markey’s] action was filed” and that 

Markey “[made] no allegation that [he] ever informed Routson or Reda of the contract to 

make mutual wills.” Appellant’s App. p. 15. Markey contends that the trial court’s 

determination was incorrect because Stephen and Madonna’s knowledge of the contract 

 

1

It is important to note that the trial court did not state in its findings that Markey was not a reasonably 

ascertainable creditor. Markey’s argument is based on his determination that, when the trial court 

determined that Stephen and Madonna did not know of the contract until Markey’s action, the court also 

implicitly determined that Markey was not a reasonably ascertainable creditor. 
13

is irrelevant to whether Markey’s action is barred by the three-month limitation. He 

argues that their actual knowledge of the contract is not coextensive with the question of 

whether Markey was a reasonably ascertainable creditor. 

We agree with Markey that Stephen and Madonna’s actual knowledge of the 

contract is not coextensive with the question of whether Markey was a reasonably 

ascertainable creditor. However, as Markey’s action was not a claim as contemplated by 

Indiana Code section 29-1-7-7(d)(2), whether or not he was a reasonably ascertainable 

creditor under that section is not a material issue of fact; it is irrelevant to the trial court’s 

grant of summary judgment in favor of the Estate. 

We find that the trial court was correct in determining that the three month 

limitation established by this Court in Keenan, rather than the nine-month limitation for 

reasonably ascertainable creditors who have not been provided with actual notice by the 

personal representative, applied to Markey’s action. The judgment of the trial court is 

affirmed.

BARNES, J., and CRONE, J., concur.