¶1dissenting.
¶2I respectfully dissent.
¶3The portions of the affidavits of Attorney Douglas and John Casson were stricken by the trial court because they contained conclusions and opinions unsupported by specific facts that formed the basis of those opinions. I find that the trial court did not abuse its discretion in its ruling. Although I believe the trial court's decision regarding the conclusory nature of the two affidavits is sufficient to deem them inadmissible, I also agree with the trial court's finding that they contained testimony in violation of Mediation Rule 2.11. As pointed out by the majority opinion, Indiana Evidence Rule 408 provides the starting point for determining whether evidence obtained during mediation is admissible. Ind.Evid.Rule 408 is not limited to excluding only "offers to settle," but also states that in addition to the settlement offer itself "[elvidence of conduct or statements made in compromise negotiations is likewise not admissible." Therefore, I would conclude that the exelusion of Rule 408 applies to both settlement offers and all other evidence relating to conduct or statements that occurred during the compromise negotiations.
¶4I also would affirm the trial court's finding that the evidence failed to create a genuine issue of material fact with regard to the testamentary capacity of Uncle Joe. The majority opinion states that the fact that the trial court found in the first will contest on November 22, 2002, that Uncle Joe needed another person to assist him in determining his best interest is evidence that Uncle Joe lacked testamentary capacity when he executed his will on November 25, 2002. I disagree. Attorney Douglas' law partner filed a Petition in the First Will Contest seeking appointment of a guardian ad liter for Uncle Joe. This one page Petition made no reference to Uncle *168Joe's mental capacity in any way, and merely made a request that a guardian is needed "to determine [Joe's] best interests as it relates to this litigation." This Petition was unverified and did not provide any evidence supporting the relief requested. As it was not served on any of the parties of record, Hall and his counsel did not know a guardian had even been requested.
¶5Furthermore, the trial court granted the Petition the same day it was filed appointing a guardian ad litem without any hearing or any evidence being submitted to support the Petition. Since the Petition did not mention Uncle Joe's mental capacity, I infer that the concern was adequate representation.
¶6The majority opinion states that a jury could reasonably find that the disposition of property in Uncle Joe's 2002 will was unnatural, which could lead to an inference that Uncle Joe lacked testamentary capacity. I disagree. First of all, I see nothing unnatural in leaving his property to his nephew that he helped to raise. It is not unusual for family members to part ways only to reconcile as they mature and grow older. Secondly, I find that because a person wishes to leave property to someone that was formerly disfavored, does not lead to a conclusion that they lack testamentary capacity. It seems to me that this wrongful inference is quite frequently raised as an argument in testamentary capacity cases.
¶7As the majority opinion points outs, in Indiana, there is a high burden that must be met to claim undue influence. The undisputed evidence shows that around the time Uncle Joe executed his Will, he was "strong willed," "very stubborn," and "wanted] to do things his own way." (App. At 56-57). Also, undue influence must be directly connected with the execution of the Will and must operate at the time it was executed. Arnold v. Parry, 363 N.E.2d 1055, 1062 (Ind.Ct.App.1977). The undisputed evidence is that Attorney Berning met outside the presence of Hall, who had no involvement in its drafting Uncle Joe's Will. I found no evidence that raised a reasonable inference that Hall interfered with the execution of the Will nor that Uncle Joe's mental state was open to undue influence.
¶8I would affirm the trial court in all respects.