Opinion
NO. 2014-CA-000893-MR
03-18-2016
LORINDA C. COULTER APPELLANT v. E. ELOISE SINGLETON AND E. ELOISE SINGLETON, EXECUTRIX OF THE ESTATE OF JEWELL E. RICE APPELLEE
BRIEF FOR APPELLANT: Frederick V. Short Hustonville, Kentucky BRIEF FOR APPELLEE: E. Eloise Singleton, Pro Se Danville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 11-CI-00302 OPINION
AFFIRMING BEFORE: J. LAMBERT, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: This is an appeal from a judgment granting a directed verdict in a will contest action brought on the basis of undue influence.
Jewell E. Rice died in 2000 at the age of ninety-two. She had six children, two of whom predeceased her and left issue. Among her living relatives, those important to this litigation are her daughters, E. Eloise Singleton and Helen Simpson, and her granddaughter, Lorinda C. Coulter, whose mother predeceased Jewell.
Between 1997 and 1999, Jewell executed a series of six wills and made and revoked power of attorney designations. During this time she also underwent two hospitalizations after breaking her hip and then her leg, and went from living independently, to living with Helen and later having Eloise care for her at home.
Jewell's March 27, 1997 will named two of her sons as executors and divided her property in five shares to each of her children except Eloise. The will noted no provision was made for Eloise because in 1995 Jewell conveyed her farm to Eloise as a gift.
Each of Jewell's wills which equally divided a portion of her property between her children in shares also provided for shares to her predeceased son's widow or children and predeceased daughter's child, Lorinda. For simplicity, any time a will mentions shares being given to her children, this was the division.
Sometime in late 1998 or early 1999, Jewell broke her hip. Jewell's December 10, 1998 will made small bequests to three of her grandchildren, left the rest of her estate to Eloise and named Eloise as her executor.
Medical records introduced through Dr. Ratiere do not contain records specifically about this hip fracture, but do indicate that on 12/01/1998 she was readmitted. The notes for that day indicate she was discharged on 11/20/1998 after a repaired hip fracture and had recently gone from living alone to being cared for by an unnamed daughter. Eloise testified Jewell fractured her hip in early 1999 and was living alone until she began living with Helen soon afterward.
In early 1999, Jewell moved into Helen's home and soon afterward executed a new will. Jewell's March 1, 1999 will divided her property in six shares, with one share to each child. Helen and another child were named as co-executors and Jewell also simultaneously named Helen as her power of attorney. Jewell lived with Helen for five months, until she broke her leg on August 9, 1999, and was hospitalized.
On August 17, 1999, after Jewell was discharged to a nursing home, Eloise had Jewell removed from the nursing home after Jewell signed a revocation of Helen's power of attorney. Jewell returned to her own home where Eloise cared for her. Soon afterward, Jewell had a new will drafted.
In Jewell's September 17, 1999 will she left her home to Eloise, named her other children as equal beneficiaries of her residual estate and named Eloise as executor. Jewell's first codicil, dated October 4, 1999, gifted specified items to Eloise and stated that certain other items would remain with the home. Jewell's second codicil, dated November 29, 1999, gifted Eloise her money because "Eloise Singleton has cared for me without help from my other children." The September 17, 1999 will, October 4, 1999 codicil and November 29, 1999 codicil (hereafter will and codicils) are the will and codicils at issue in this appeal.
On December 12, 1999, Jewell executed a holographic will. Her final will was executed on December 28, 1999. Both of these wills left the entirety of her estate to Eloise, who was named as her executor. Eloise continued to care for Jewell at home until her death the following year.
Eloise, as Executrix of the Estate of Jewell E. Rice, attempted to probate the December 28, 1999 will. One of Jewell's children challenged the validity of this will, on the basis of undue influence and lack of testamentary capacity. Following a jury trial, it was declared void for being the product of undue influence.
Eloise then proceeded to probate the holographic December 12, 1999 will and one of Jewell's children challenged its validity on the basis of undue influence and lack of testamentary capacity. Initially, the December 12, 1999 will was declared valid after the trial court determined issue preclusion prevented it from being void for lack of testamentary capacity based on a finding of testamentary capacity in the previous trial regarding the December 28, 1999 will, and granted a directed verdict to Eloise on the issue of undue influence.
On appeal, this Court ruled issue preclusion did not apply because Jewell's capacity on December 28, 1999, did not determine her capacity on December 12, 1999, and there were sufficient "badges" of undue influence to submit the issue to the jury. Rothwell v. Singleton, 257 S.W.3d 121, 123-25 (Ky.App. 2008). On remand, following a second trial, the jury determined the December 12, 1999 will was void for lack of testamentary capacity and being the product of undue influence.
Eloise then sought to probate the September 17, 1999 will and codicils at issue here in the Lincoln District Court and they were admitted to probate. Lorinda filed a complaint in Lincoln Circuit Court alleging the will and codicils were void as resulting from undue influence and that Eloise committed waste. The parties filed competing motions for summary judgment which were both denied. The action was bifurcated and proceeded to trial on the undue influence claim.
Prior to trial, the trial court granted Eloise's motion to exclude testimony from Dr. Finely Hendrickson. Dr. Hendrickson's testimony was admitted in the previous case regarding the December 12, 1999 will to establish Jewell suffered from Alzheimer's disease. However, his testimony was excluded from this case because Dr. Hendrickson: could not find any observation recorded in his file to support any diagnosis of Alzheimer's disease; did not express that his opinion of such diagnosis was to a reasonable probability; and could not relate his diagnosis to any time earlier than when he noted it, on January 19, 2000.
After Lorinda filed an untimely witness list which included Dr. Hendrickson (despite the previous order excluding his testimony), Dr. Colin Raitiere and Helen, who would be testifying by deposition, Eloise filed a motion in limine to exclude their testimony. The trial court partially granted Eloise's motion in limine: it reiterated its prior ruling excluding the testimony of Dr. Hendrickson; it excluded medical testimony by Dr. Raitiere but allowed his testimony as a fact witness; and it excluded Helen's testimony by deposition because she was an available witness.
At trial, only Lorinda, Eloise (as a hostile witness) and Dr. Raitiere testified for the plaintiff. Several documents were introduced into evidence including the 1995 deed conveying Jewell's farm to Eloise, the first four wills and two codicils, the document naming Helen as Jewell's durable power of attorney, the document revoking Helen's power of attorney and Eloise's redacted medical records relating to her leg fracture. The voided subsequent wills were excluded.
Lorinda testified she believed Jewell's property should have been divided equally as in Jewell's prior will. She admitted she did not have a strong relationship with her grandmother after her mother died in a car accident until shortly before Jewell's death under an inaccurate belief that her grandmother was not interested in her. However, she visited Jewell at Helen's house and when she was being cared for by Eloise. Eloise never told her not to visit, but Lorinda felt Eloise did not want her to visit.
Eloise testified that although Jewell was elderly, she lived by herself, wrote her own checks and was independent until she broke her hip in 1999 and began living with Helen. She was strong-willed and had a pattern of changing her wills when one of her children did wrong.
Eloise testified while Jewell was living with Helen, Helen kept Jewell away from her. Eloise called the sheriff about Jewell's situation but was advised nothing could be done. After Jewell broke her leg and was admitted to the hospital, Eloise was able to see her. Eloise called Jewell's doctor's office because she was concerned that Helen planned to have Jewell placed in a nursing home against Jewell's wishes. Eloise testified that, despite her objections, Helen, acting pursuant to her power of attorney, followed through on her plan to transfer Jewell to a nursing home following her release from the hospital.
Without objection from Lorinda, Eloise testified extensively about her conversations with Jewell. Eloise visited Jewell in the nursing home and Jewell asked Eloise to get Jewell home. The nursing home staff advised Jewell they could not release her until she revoked Helen's power of attorney. Previously, Eloise had been Jewell's power of attorney and, at Jewell's request, she prepared a revocation of power of attorney form which Jewell signed so she could be released.
Eloise testified that while she offered to care for Jewell in Eloise's home, Jewell was adamant that she be returned to her own home and Eloise complied. For the next seventeen months until Jewell's death, Eloise and a hired caretaker cared for Jewell in alternating twelve hour shifts. Eloise testified that none of Jewell's children or grandchildren visited her during this time. While living at home, Jewell managed her own financial affairs and Eloise acted at her direction. Eloise addressed the envelope to Helen sending her the revocation of power of attorney document at Jewell's request. Eloise testified Helen was upset Eloise had taken Jewell from the nursing home, so Helen left Jewell's possessions outside of her house and refused to see Jewell again.
Eloise testified Jewell told her she only intended to visit Helen for a short period of time in 1999 and brought very few personal items with her, but Helen kept her in Helen's house against her will. Helen would not allow her to make calls, go home, let other people visit her and kept her heavily medicated. Helen also charged Jewell rent.
Eloise testified when Jewell reviewed her checkbook after it was returned by Helen, she noticed a large check had been written to an attorney from her account, but she had no memory of what it was for, which she attributed to the high quantities of pain medication Helen kept her on while she lived in Helen's home. Upon Eloise's advice, Jewell contacted the attorney and asked for her paperwork. In response, the attorney sent Jewell the will she executed while living with Helen, a power of attorney she had previously granted to Helen and copy of the check she paid him.
Eloise testified after Jewell reviewed this will, she told Eloise she did not remember changing her will while living with Helen, from leaving the bulk of her estate to Eloise, to dividing it equally among her children and was determined to change it back. Eloise testified she did not recall if she was in the house when an attorney visited at Jewell's request to change her will. Either she or the hired caretaker could have been present.
Eloise testified that after Jewell executed her new will she told Eloise she changed her will to leave her home to Eloise because she wanted the adjoining farm that she had previously conveyed to Eloise to remain with the home. Eloise testified she was familiar with the designations Jewell made in her codicils and believed Jewell's codicils were made in reaction to her children failing to see her again during the last months of her life. Eloise testified Jewell kept her new will and codicils in her lock box locked in the front bedroom in her home.
Because Dr. Raitiere was unavailable, his redacted deposition was read into evidence. Dr. Raitiere testified he was Jewell's family doctor for about five to ten years and last saw her in the office in February of 1999. He did not remember whether he saw her in the hospital after she was treated for a fracture on August 3, 1999.
While he was her physician, Dr. Raitiere did not believe Jewell had any diminished mental capacity. He described her as strong-willed and opinionated and noted she occasionally left his practice when displeased with him. He believed there was some turmoil and conflict in her family relations.
Dr. Raitiere testified his office received a call from Eloise on August 11, 1999, after Jewell was hospitalized for a fracture. Eloise was angry she was not notified that her mother was in the hospital. Eloise believed her sister kidnapped Jewell and was planning on getting a court order to prevent her from admitting Jewell to a nursing home. She believed Jewell's power of attorney was changed under duress and Jewell was not capable of making decisions for her benefit.
The office note summarizing this call did not specify which sister it was and Dr. Raitiere testified that he did not know to which sister Eloise was referring. --------
Following the completion of Lorinda's case, the trial court granted a directed verdict to Eloise ruling that as a matter of law no reasonable juror could find that Eloise exercised undue influence over Jewell in making the will and codicils at issue. Lorinda appealed, arguing there were sufficient badges of undue influence to submit the matter to the jury.
We review an appeal of a directed verdict as follows:
The standard of review for an appeal of a directed verdict is firmly entrenched in our law. A trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or there are no disputed issues of fact upon which reasonable minds could differ. Where there is conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts. A motion for directed verdict admits the truth of all evidence favorable to the party against whom the motion is made. Upon such motion, the court may not consider the credibility of evidence or the weight it should be given, this being a function reserved for the trier of fact. The trial court must favor the party against whom the motion is made, complete with all inferences reasonably drawn from the evidence. The trial court then must determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be "palpably or flagrantly" against the evidence so as "to indicate that it was reached as a result of passion or prejudice." In such a case, a directed verdict should be given. Otherwise, the motion should be denied.Gibbs v. Wickersham, 133 S.W.3d 494, 495-96 (Ky.App. 2004) (internal citations omitted).
It is well-argued and documented that a motion for a directed verdict raises only questions of law as to whether there is any evidence to support a verdict. While it is the jury's province to weigh evidence, the court will direct a verdict where there is no evidence of probative value to support the opposite result and the jury may not be permitted to reach a verdict based on mere speculation or conjecture.
Therefore, we consider whether there is a complete absence of proof of undue influence.
[T]o invalidate a will on the ground of undue influence, the contestant must show more than the mere opportunity to exercise it. There must be some specific evidence of circumstances from which it can be reasonably inferred that undue influence was in fact exercised. Furthermore, reasonable influence obtained by acts of kindness or by argument addressed to the understanding is not in law an undue influence. To justify setting aside a will the influence exercised must be such that it obtains dominion over the mind of the testator to such an extent as to destroy his free agency in the disposal of his estate, and constrains him to do that which he would not have done if left to the free exercise of his judgment.Burke v. Burke, 801 S.W.2d 691, 693 (Ky.App. 1990) (internal citations and quotation marks omitted).
Usually, direct proof of undue influence is unavailable so courts rely on an examination of the "badges" of undue influence to determine whether undue influence occurred. Rothwell, 257 S.W.3d at 125.
Such badges include a physically weak and mentally impaired testator, a will which is unnatural in its provisions, a recently developed and comparatively short period of close relationship between the testator and principal beneficiary, participation by the principal beneficiary in the preparation of the will, possession of the will by the principal beneficiary after it was reduced to writing, efforts by the principal beneficiary to restrict contacts between the testator and the natural objects of his bounty, and absolute control of testator's business affairs.Bye v. Mattingly, 975 S.W.2d 451, 457 (Ky. 1998). If the testator's mental impairment is proven, a lower level of undue influence must be shown than is normally required. Id. at 458.
The issue of an unnatural disposition is only to be used as an indicia of a jury question . . . . There is not, however, a per se unnatural will. . . . [T]he lack of [a factual] issue [on unnatural disposition], can be so clear that a trial court can properly hold that rational minds could not disagree and sustain a directed verdict.Fischer v. Heckerman, 772 S.W.2d 642, 646 (Ky.App. 1989) (internal citations and quotation marks omitted).
The issue of whether a will is sufficiently unnatural on its face to raise an issue of fact requires examination of what is and is not unnatural in a given situation. There are a variety of reasons why one child might be preferred over another, or a friend may be preferred over a child.
It might be said generally that to exclude one's children might be considered unnatural, but merely because one happens to be the offspring of a testator does not entitle one to be included in an estate. Moreover, there is nothing requiring a parent to make such a provision.Wallace v. Scott, 844 S.W.2d 439, 441 (Ky.App. 1992). "[T]he longstanding rule in Kentucky is that a testator, of sound mind and under no undue influence, is generally free to leave his or her property to such persons or institutions, in such shares and on such conditions, as he or she deems prudent." Terrill v. Estate of Terrill, 217 S.W.3d 858, 862 (Ky.App. 2006) (footnote omitted).
"When the will provides for an unequal or unnatural disposition and there is slight evidence of the exercise of undue influence, the evidence will be deemed sufficient to submit the case to the jury." Rothwell, 257 S.W.3d at 125. There is no presumption of undue influence when someone with a confidential relationship with the testator, whether a relative or not, receives a bequest because "it is not uncommon or inappropriate for a testator to make such a bequest to one who has provided comfort and support to the testator." Bye, 975 S.W.2d at 458. However, a combination of physical and mental incapacity, favoring caretakers along with the complete exclusion of his only blood relatives who the testator previously planned to leave with a substantial bequest and were in financial need, when combined with other badges of undue influence would be sufficient to survive summary judgment. Amos v. Clubb, 268 S.W.3d 378, 381-82 (Ky.App. 2008).
Lorinda does not challenge the propriety of the trial court's decisions to exclude witnesses or certain evidence. Instead, Lorinda challenges the trial court's conclusion that the evidence introduced at trial was insufficient to create a jury issue on undue influence. In doing so, she relies in part upon evidence that may have been introduced in previous trials regarding the last two wills but not introduced during this trial. We may not consider evidence that was not before the trial court.
Lorinda argues Jewell was physically weak and mentally impaired. While there was evidence that Jewell was physically weak, the witnesses agreed Jewell was a strong-willed individual who made her own decisions. Dr. Raitiere testified he had no concerns that Jewell was mentally impaired. There was a complete lack of evidence that Jewell suffered from any intrinsic mental impairment when she decided to leave most of her assets to Eloise or at the time she executed her will and codicils.
Lorinda argues the will was unnatural because it was not divided equally between Jewell's children. There is nothing necessarily unnatural about favoring one child over others. Wallace, 844 S.W.2d at 441.
Lorinda argues she provided proof the will was unnatural because she established there was a pattern of Jewell dividing her property more evenly when not being cared for by Eloise and favoring Eloise while under her care. She argues this demonstrates Eloise was using undue influence while serving as Jewell's caretaker to procure wills advantageous to her. In support of this argument, Lorinda states Eloise cared for Jewell after she broke her hip in 1998 and, while under her care, Jewell executed her December 10, 1998 will, which left almost all her property to Eloise. The same thing occurred in regard to the will and codicils at issue here which were executed while Jewell was under Eloise's care after breaking her leg. A neutral result, however, was achieved while Jewell was under Helen's care. However, no evidence was presented at trial that Jewell was being cared for by Eloise at the time the December 10, 1998 will was executed. Therefore, no pattern of behavior was established that Jewell divided her property in one manner each time she was cared for by Eloise, as compared to when she was on her own or living with Helen.
Lorinda argues Eloise had a recently developed and comparatively short period of a close relationship between herself and Jewell after Eloise removed Jewell from the nursing home. This argument is not supported by the evidence. Eloise was her daughter and they had a long-standing relationship. The 1995 deed conveying the farm to Eloise was evidence of a closeness between them that preceded Eloise caring for Jewell.
Lorinda argues Eloise contacted the attorney who drafted Jewell's will and was present when that attorney came to the residence. There was no evidence that Eloise participated in the preparation of the will and/or codicils. Eloise testified she did not participate in the drafting of these documents but may have been present in the house at the time. Such limited involvement is not sufficient to constitute a badge of undue influence. See Bye, 975 S.W.2d at 459 (driving testator to and from law office insufficient to constitute active participation in its execution).
Lorinda argues Eloise possessed the will and codicils because they were in Jewell's residence while Eloise was her caretaker. Eloise testified that although the will and codicils were in Jewell's house, she did not have access to them because Jewell kept them in a lock box in Jewell's locked room.
Lorinda argues Eloise restricted her from seeing Jewell based on Lorinda's feeling that Eloise wanted to exclude her from a relationship with Jewell and Eloise's testimony that no one else in the family came to see Jewell. Neither Lorinda's feelings nor Eloise's testimony about the lack of visitors establish that Eloise restricted family members from seeing Jewell. Lorinda testified she saw Jewell while Eloise was her caretaker and though Eloise may not have liked her visiting, she did nothing to restrict her access to Jewell.
Lorinda argues Eloise had absolute control of Jewell's finances because Eloise was her only caregiver and power of attorney. Lorinda's only evidence to support this argument was Eloise's action of preparing the revocation of Helen's power of attorney and preparing the envelope in which it was mailed to Helen. This is insufficient to establish Eloise absolutely controlled Jewell's business affairs. Eloise testified Jewell wrote her own checks, contacted an attorney herself and she acted only at Jewell's direction in regards to the revocation of Helen's power of attorney document. Dr. Raitiere testified Jewell made her own decisions as to which physicians to see. There was no evidence Eloise was Jewell's exclusive caretaker; the evidence was that Eloise alternated caretaking duties with a hired caretaker. There was also no evidence Eloise was ever named as Jewell's power of attorney after Jewell revoked Helen's power of attorney.
Because there is a complete absence of proof on each of the badges of undue influence, all that remains to cast suspicion on whether Jewell's will and codicils resulted from undue influence is the fact that Jewell named Eloise as her primary beneficiary over other heirs while Eloise was caring for her. At most, this shows Eloise had an opportunity to use her presence as a caretaker to influence Jewell's testamentary decisions, but not that such influence took place or overcame Jewell's exercise of her own free will. Burke, 801 S.W.2d at 693. Therefore, the trial court acted properly by directing a verdict at the conclusion of Lorinda's case because any jury verdict in her favor would have been the result of mere speculation or conjecture. Gibbs, 133 S.W.3d at 496.
Accordingly, we affirm the Lincoln Circuit Court's judgment granting a directed verdict.
ALL CONCUR. BRIEF FOR APPELLANT: Frederick V. Short
Hustonville, Kentucky BRIEF FOR APPELLEE: E. Eloise Singleton, Pro Se
Danville, Kentucky