## Facts

- John Markey (father of David Markey) married Frances Markey after the death of his first wife, Betty.
- John and Frances entered a contract to make, and not revoke, mutual wills providing for specified beneficiaries upon the survivor’s death.
- John died first, and his property passed to Frances under the mutual-will arrangement.
- After John’s death, Frances executed a new will revoking the mutual will and leaving her estate primarily to her own children; the new will named one child as personal representative.
- After Frances died, the estate was opened and notice of administration was published, but no separate actual notice was provided to David.
- David learned of Frances’s death about nine months later and sued the estate and related parties to enforce the mutual-wills contract as a breach-of-contract liability.

## Issues

1. Whether an action to enforce a contract to make and not revoke mutual wills is a “claim” under Indiana’s Probate Code definition of “claims.”
2. If it is a Probate Code “claim,” what Probate Code filing deadlines and creditor-notice rules govern, including the nine-month outer bar and rules for known or reasonably ascertainable creditors.

## Decision

- The Indiana Supreme Court reversed summary judgment for the estate and remanded.
- The Court held that David’s breach-of-contract action to enforce the mutual-wills contract is a Probate Code “claim.”
- The Court rejected applying the three-month limitation used for suits challenging distributions under a probated will.
- The Court left to the trial court on remand whether the claim was timely under the Probate Code’s claims/nonclaim provisions, including any effect of creditor-notice requirements.

## Legal Principles

- Indiana’s Probate Code defines “claims” broadly to include surviving liabilities of the decedent, including liabilities “arising in contract or in tort or otherwise.”
- A contract to make and not revoke mutual wills creates an enforceable contractual obligation that may be pursued against the decedent’s estate as a surviving liability.
- Probate “nonclaim” provisions govern the timeliness of “claims” against the estate, including an absolute bar no later than nine months after death.
- Personal representatives must provide actual notice to known or reasonably ascertainable creditors; failures or delays in such notice can affect the creditor’s claim-filing window, subject to the nine-month outer limit.
- A contract-enforcement action that does not seek to invalidate a will is treated as a claim against the estate rather than a will contest or a direct attack on probate distributions.

## Conclusion

The court held that an action to enforce a mutual-wills contract is a statutory probate “claim” governed by the Probate Code’s claim-filing and creditor-notice framework, not the short three-month period for distribution challenges, and remanded for a timeliness determination under those Probate Code provisions.


Markey v. Estate of Markey, 38 N.E.3d 1003 (Ind. 2015)