Najam, J.
Statement of the Case
Following the death of her father, Gary Kent (“Gary”), Cynthia Kerr (“Cynthia”) filed with the probate court a verified petition to revoke the probate of Gary’s will and, under a separate cause number, a complaint to revoke the probate of the will. Under a third cause number, Cynthia’s brother John David Kent (“John”) filed with the probate court a verified petition to docket Gary’s educational trust. Following a consolidated hearing on the parties’ cross-motions for summary judgment, the probate court dismissed, with prejudice, both the trust proceeding and the will contest. Specifically, the court denied Cynthia’s summary judgment motion, which sought to enforce a family settlement agreement that had been executed by Gary, John, and Cynthia before Gary’s death. And the court ordered the Personal Representatives, John and Gary’s cousin, Kevin Kent (“Kevin”), to “proceed with administration of the probate estate pursuant to decedent’s Last Will and Testament, executed on June 23, 2008.” Cross-Appellant’s App. at 25.
John and Kevin filed a notice of appeal, but this court granted Cynthia’s motion to dismiss that appeal after John and Kevin1 failed to timely file an appellants’ brief. We retained jurisdiction, however, to hear Cynthia’s cross-appeal, where she presents a single dispositive issue for our review, namely, whether Indiana Code Section 29-1-9-1 permits the prospective beneficiaries of a future inheritance to execute, prior to the decedent’s death, a family settlement agreement to determine their anticipated rights or interests in the decedent’s estate. We reverse and remand, and we instruct the trial court to enter judgment for Cynthia on her motion to enforce the parties’ agreement.
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Indiana Code Section 29-1-9-1 does not specifically address the timing of a family settlement agreement. And while the tense of some of the words used might suggest that such an agreement may only be made “post-mortem,” such a strict interpretation would undermine the statute’s underlying policy of encouraging family settlement agreements and Indiana’s policy which favors freedom of contract….
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Conclusion
Cynthia moved for summary judgment on the enforceability of the settlement agreement, which presents a pure question of law on appeal. We hold that nothing in Indiana Code Section 29-1-9-1 prohibits the agreement, and it is a valid and enforceable contract. We also hold that the trial court erred when it concluded that the agreement was not supported by sufficient consideration and that John had rescinded the agreement. The trial court erred when it denied Cynthia’s summary judgment motion. We reverse and remand with instructions that the trial court enter judgment for Cynthia on her motion to enforce the agreement and for further proceedings not inconsistent with this opinion.
Reversed and remanded with instructions.
Kirsch, J., and Brown, J., concur.