Opinion
NO. 2013-CA-001029-MR
01-30-2015
WILLIE STUCKEY APPELLANT v. ALLEN B. YOUNG, JR. APPELLEE
BRIEF FOR APPELLANT: Joseph M. Meadows Cincinnati, Ohio BRIEF FOR APPELLEE: Alexander F. Edmondson Jason V. Reed Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 09-CI-02192
OPINION
AFFIRMING
BEFORE: DIXON, JONES AND VANMETER, JUDGES. DIXON, JUDGE: Appellant, Willie Stuckey, appeals from an order of the Kenton Circuit Court granting summary judgment in favor of Appellee, Allen Young, Jr., in a will contest matter. Finding no error, we affirm.
Appellant Stuckey worked for many years as a handyman for the deceased, Marthe E. Young, and her husband, Frank Young. After the latter passed away in 1996, Stuckey became Marthe's live-in caregiver and continued to maintain her property. During this time period, and apparently throughout most of the 1990's, Appellee Young, who is Marthe's and Frank's son, was estranged from his parents. In 1998, Marthe executed a will leaving a considerable amount of her estate to Stuckey and expressing her intent to disinherit Young. In addition, Marthe granted Stuckey her power of attorney.
In 2002, Marthe was admitted to the Florence Park Nursing Home after sustaining a hip fracture as a result of a fall. Sometime in late 2002, Young re-entered his mother's life after he was allegedly notified by Adult Protective Services that Stuckey had been physically abusing and financially exploiting Marthe during the time in which he was caring for her. In February 2003, Young petitioned the Boone District Court to declare Marthe disabled. On February 10, 2003, the district court entered an emergency order appointing Young as fiduciary for his mother. Shortly thereafter, Young revoked Stuckey's power of attorney and evicted him from Marthe's residence.
On March 19, 2003, Marthe executed her last will and testament as well as signed deeds placing title to several parcels of real estate in joint survivorship with Young. The will was prepared by attorney Robert Bathalter. Bathalter later testified by deposition that he had drafted hundreds of wills during his legal career. He explained that it was his normal practice to first speak with the client to get an idea of his or her mental state and if there was any question as to the client's mind or lucidity, he would not allow execution of the will. After meeting with Marthe, Bathalter testified that he believed there was no question that she was aware of the extent of her estate and that she wished to leave it to her son. In addition to Bathalter, George Davis and his wife, Dawn Davis, were present and acted as witnesses to Marthe executing her will.
Marthe died on April 25, 2008. On July 29, 2009, Stuckey filed a complaint in the Kenton Circuit Court seeking to set aside and invalidate Marthe's will, and to also void the deeds she executed in 2003. Stuckey claimed that Marthe lacked testamentary capacity to sign her will or convey property, and that she was unduly influenced by Young to execute the documents. Both parties thereafter filed motions for summary judgment. On May 6, 2013, the trial court entered an order granting summary judgment in favor of Young. The trial court relied on the Kentucky Supreme Court's decision in Bye v. Mattingly, 975 S.W.2d 451 (Ky. 1998), in finding there was a presumption that Marthe possessed testamentary capacity at the time she signed her will. The trial court noted that Young was the natural object of Marthe's bounty and that although they had been previously estranged, it was not unreasonable to believe that after reestablishing relations she would leave her estate to her son. Following the denial of his motion to alter, amend or vacate the judgment, Stuckey appealed to this Court.
The standard of review on appeal when a trial court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Kentucky Rules of Civil Procedure 56.03. "The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citing Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480-82 (Ky.1991)).
"The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present 'at least some affirmative evidence showing that there is a genuine issue of material fact for trial.'" Lewis, 56 S.W.3d at 436 (citing Steelvest, 807 S.W.2d at 482). The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists." Steelvest, 807 S.W.2d at 480. The Kentucky Supreme Court has held that the word "impossible," as set forth in the standard for summary judgment, is meant to be "used in a practical sense, not in an absolute sense." Lewis, 56 S.W.3d at 436. "Because summary judgment involves only legal questions and the lack of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Id.
We agree with the trial court that Bye v. Mattingly is dispositive. Therein, our Supreme Court reiterated that in Kentucky, there is a strong presumption in favor of a testator possessing adequate testamentary capacity. This presumption can only be rebutted by the strongest showing of incapacity. Bye, 975 S.W.2d at 455. The Court explained:
"Kentucky is committed to the doctrine of testatorial absolutism." J. Merritt, 1 Ky.Prac.—Probate Practice & Procedure, § 367 (Merritt 2d ed. West 1984). See New v. Creamer, Ky., 275 S.W.2d 918 (1955); Jackson's Ex'r v. Semones, 266 Ky. 352, 98 S.W.2d 505 (1937). The practical effect of this doctrine is that the privilege of the citizens of the Commonwealth to draft wills to dispose of their property is zealously guarded by the courts and will not be disturbed based on remote or speculative evidence. American National Bank & Trust Co. v. Penner, Ky., 444 S.W.2d 751 (1969). The degree of mental capacity required to make a will is minimal. Nance v. Veazey, Ky., 312 S.W.2d 350, 354 (1958). The minimum level of mental capacity required to make a will is less than that necessary to make a deed, Creason v. Creason, Ky., 392 S.W.2d 69 (1965), or a contract. Warnick v. Childers, Ky., 282 S.W.2d 608 (1955).Bye, 975 S.W.2d at 455.
To validly execute a will, a testator must: (1) know the natural objects of her bounty; (2) know her obligations to them; (3) know the character and value of her estate; and (4) dispose of her estate according to her own fixed purpose. . . . Merely being an older person, possessing a failing memory, momentary forgetfulness, weakness of mental powers or lack of strict coherence in conversation does not render one incapable of validly executing a will. Ward v. Norton, Ky., 385 S.W.2d 193 (1964). "Every man possessing the requisite mental powers may dispose of his property by will in any way he may desire, and a jury will not be permitted to overthrow it, and to make a will for him to accord with their ideas of justice and propriety." Burke v. Burke, Ky.App., 801 S.W.2d 691, 693 (1991) (citing Cecil's Ex'rs. v. Anhier, 176 Ky. 198, 195 S.W. 837, 846 (1917)).
As in the instant case, the Appellant in Bye argued that the testator lacked testamentary capacity because he suffered from Alzheimer's disease. Disagreeing, the Court stated,
When a testator is suffering from a mental illness which ebbs and flows in terms of its effect on the testator's mental competence, it is presumed that the testator was mentally fit when the will was executed. This is commonly referred to as the lucid interval doctrine. Warnick v. Childers, Ky., 282 S.W.2d 608, 609 (1955); Pfuelb v. Pfuelb, 275 Ky. 588, 122 S.W.2d 128 (1938). See In re Weir's Will, 39 Ky. 434 (1840); Watts v. Bullock, 11 Ky. 252 (1822). Alzheimer's is a disease that is variable in its effect on a person over time. It is precisely this type of illness with which the lucid interval doctrine was designed to deal. By employing this doctrine, citizens of the Commonwealth who suffer from a debilitating mental condition are still able to dispose of their property.Bye, 975 S.W.2d at 465.
In the present case, there is no question that Marthe suffered from Alzheimer's disease. However, Attorney Bathalter, who has substantial experience in estate planning and probate practice, opined that, based upon his in-person meeting with Marthe, he had no doubt that she was lucid and competent at the time the will was executed. In addition, the two witnesses to the will, George and Dawn Davis, both described Marthe as being completely lucid on the day they all met for her to execute the will.
Stuckey's only evidence challenging Marthe's testamentary capacity came from his expert, neuropsychologist Dr. Daniel Gripshover, who concluded that Marthe was not competent to execute a valid will because she was suffering from moderate to severe cognitive deficits as a result of dementia due to Alzheimer's disease. Significantly, however, Dr. Gripshover based his opinion solely upon a review of Marthe's medical records before and after she executed the will, as well as upon general medical statistics. It is uncontroverted that he never personally spoke with or observed Marthe as she died nearly five years before he become involved in the matter. Dr. Gripshover further admitted that he did not speak with either Bathalter or the Davises about Marthe's capacity on the day she executed the will.
We find no merit in Stuckey's argument that Dr. Gripshover's opinion is entitled to a higher degree of deference because he is an expert or that because his opinion was based upon medical records, it did not constitute speculation. The fact of the matter is that Bye and its progeny clearly establish that the only question is whether the presumption of lucidity and testimony capacity existing at the moment the will was executed can be conclusively rebutted. We agree with the trial court that Stuckey failed to offer any evidence proving that Marthe did not have a lucid interval during which she executed her will. Evidence that Marthe suffered mental and physical infirmities in the days and weeks surrounding the execution of the will was insufficient in the absence of any proof that she was incompetent on the day and moment she signed the will.
We likewise conclude that Stuckey failed to offer sufficient evidence to show that Marthe's will and property deeds were the result of undue influence by Young. Stuckey claims that the trial court ignored "substantial badges" of undue influence such as Marthe's weakened mental and physical health, the fact that Young retained a new attorney to draft Marthe's will, and the fact that Young petitioned the district court to be appointed as Marthe's guardian before he became a beneficiary under her will.
Undue influence is generally defined as influence that rises to the level of destroying the testator's free will to dispose of his property in accordance with his own judgment and replaces it with the "desires of the influencer." Nunn v. Williams, 254 S.W.2d 698 (Ky. 1953). To determine the existence of undue influence, courts recognize certain indicia or "badges" of undue influence, such as:
[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. (Internal citations omitted).Rothwell v. Singleton, 257 S.W.3d 121, 125 (Ky. App. 2008) (quoting Bye, 975 S.W.2d at 457).
To invalidate a will on the ground of undue influence, the contestant must show more than the mere opportunity to exercise it. Bodine v. Bodine, 241 Ky. 706, 44 S.W.2d 840, 843 (1931). There must be some specific evidence of circumstances from which it can be reasonably inferred that undue influence was in fact exercised. Copley v. Craft, 312 S.W.2d 899, 900 (Ky. 1958). Furthermore, "the influence must be of a type which is inappropriate. Influence from kindness, appeals to feelings, or arguments addressed to the understanding of the testator are appropriate." Bye, 975 S.W.2d at 457.
Although the trial court was largely silent on Stuckey's undue influence claim, we are of the opinion that summary judgment on this issue was appropriate. Certainly, some of the "badges" are present in this case as there is no question that Marthe was a physically weak and mentally impaired testator and that Young participated in Marthe's execution of a new will. However, as Young points out in his brief, once he was appointed guardian of his mother's affairs, he had a fiduciary obligation to protect her well-being and her estate, especially in light of the allegations of exploitation made against Stuckey. More importantly, while Young was estranged from his parents for a period of time, which presumably led to Stuckey's inclusion in Marthe's will, it is not unreasonable or unexpected that Young and Marthe resolved their differences prior to her death. Marthe's will was the natural disposition of her estate to her only child. We simply cannot conclude that there was evidence demonstrating that Marthe's will was the result of undue influence.
For the reasons set forth herein, the order of the Kenton Circuit Court grating summary judgment in favor of Appellee is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph M. Meadows
Cincinnati, Ohio
BRIEF FOR APPELLEE: Alexander F. Edmondson
Jason V. Reed
Covington, Kentucky