WILLS (residuum, intestacy, charitable designation): Mackey v. Hinson (COA 12/4/2009)

Mackey v. Hinson
2008-CA-002328 12/04/2009 2009 WL 4406090 DR Pending

Opinion by Judge Lambert; Judge Taylor and Senior Judge Henry concurred. The Court affirmed a summary judgment finding a will to be unambiguous and distributing undesignated residuum to four charities. The Court held that the trial court properly found that the will was unambiguous in its direction that all undesignated portions of the estate should be distributed pursuant to the residuary clause therein. Any miscalculation or omission which resulted in a portion of the estate going undesignated did not result in intestacy as to the undesignated portion. Rather, the contingency was expressly and manifestly set forth in the residuary clause.

TORTS : Goodman v. Goldberg & Simpson, P.S.C. (COA 10/16/2009)

Goodman v. Goldberg & Simpson, P.S.C.
2008-CA-000921 10/16/09 2009 WL 3321024 Rehearing Pending
Opinion by Senior Judge Harris; Judges Acree and Lambert concurred.

The Court affirmed a summary judgment granted in favor of lawyers (including appellant’s brother) and a law firm and dismissed appellant’s tort claims against them related to the distribution of assets from two estates. The Court held that the trial court correctly concluded that there were no genuine issues of material fact. First, even if appellant’s brother made alleged representations as to the division of their father’s estate, appellant provided no evidence that he relied upon the representations to his detriment other than to state that he would have initiated criminal proceedings against the father. The court next held that there was no evidence of a contract between appellant and the father so that his claim of intentional interference with contract must fail. The Court next held that the father did not owe appellant a fiduciary duty as an intended beneficiary of the mother’s estate so that his claim for aiding and abetting breach of fiduciary duty failed as a matter of law. The Court next held that there was no concrete evidence to establish that the brother committed any wrongdoing against appellant and it was the father’s prerogative to dispose of his estate as he saw fit. Therefore, the claim for the tort of outrage must fail. The Court next held that because there was no attorney-client relationship between the brothers, the claim of legal malpractice must fail. The Court next held that there was no evidence that the law firm or the attorney who drafted the father’s will had any knowledge of any purported agreement as to the distribution of assets and moreover, they owed a fiduciary duty to the father and therefore, the claim for breach of fiduciary duty and malpractice as to them must fail. The Court next held that the law firm did not owe a duty to appellant as an intended third-party beneficiary of the father’s will. The Court finally held that the trial court did not prematurely enter summary judgment. Appellees moved for summary judgment after two years after which the trial court allowed another six months of discovery, the record was voluminous, appellant had the opportunity to and did supplement the record, and appellant did not specify what significant information he was not able to obtain through discovery.

WILLS & ESTATES – Failure to join indispensable party, claim for funeral expenses: Rice v. Steele (C OA 9/18/2009)

Rice v. Steele
2008-CA-000308 9/18/09 2009 WL 2971596

Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred. The Court dismissed appellant’s appeal from an order dismissing her claims against her mother’s estate and vacated in part and remanded a partial summary judgment in favor of appellant on her claim for restitution for her mother’s funeral expenses.

The Court granted appellee’s motion to dismiss the appeal for appellant’s failure to join her siblings. The siblings were named defendants in the court below. Therefore, in their individual capacities, they were indispensable and naming the estate alone was fatal. The Court then held that the trial court erred in granting partial summary judgment to appellant on the claim of restitution for funeral expenses when the motion for summary judgment failed to name and serve the siblings.

WILLS & ESTATES – Illegitimates claim to father’s property barred by SOL: Combs v. Mullins (COA 9/18/2009)

Combs v. Mullins
2008-CA-000776 9/18/09 2009 WL 2971636 DR pending

Opinion by Judge Moore; Judge Lambert concurred; Judge VanMeter dissented by separate opinion. The Court affirmed an order of the circuit court dismissing appellant’s claim for an interest in property filed over thirty years after his father’s death.

Appellant argued that Pendleton v. Pendleton, 560 S.W.2d 538 (Ky. 1977) (Pendleton II), holding KRS 391.090 (prohibiting an illegitimate child from inheriting from his father) unconstitutional, did not have a retroactive effect on the devolution of a title and that establishing a firm date for the application of retroactivity resulted in a violation of his federal equal protection rights and unjustifiably stripped him of his right to inherit from his father. The Court held that it was bound by the holding in Turner v. v. Perry County Coal Corp., 242 S.W.3d 658 (Ky. App. 2007), and Pendleton II, as the Court had considered whether to overrule Turner but the majority had refused to do so. Therefore, because the father died intestate in 1975, before the Pendleton II decision was rendered, title to the property properly passed to the legitimate children on that date and appellant did not inherit an interest in the property. Thus, the trial court properly dismissed the complaint.

WRITS – Lack of subject matter jurisdiction in writ filed over property distribution and estate matter: William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest) (SC 8/27/2009)

William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest)
2008-SC-000597-MR August 27, 2009
Opinion by Justice Venters. All sitting; all concur.

Before the circuit court could rule on the property division in dissolution action, the exhusband passed away. The circuit court substituted the estate as party to the dissolution and entered a restraining order prohibiting transfer of marital assets. The executor filed for a writ of prohibition and mandamus, arguing the trial court lacked personal jurisdiction. The Court of Appeals denied the writ. On appeal, the executor argued that a writ was proper since the trial court was proceeding outside its jurisdiction, which he contended was a proper basis for the issuance of a writ. The executor asserted he had not been properly served with process, therefore the circuit court lacked personal jurisdiction over him.

The Court affirmed the Court of Appeal’s denial of the writ, holding the “lack of jurisdiction” in writ cases as referred to in Hoskins means a lack of subject matter jurisdiction —not personal jurisdiction. Furthermore, the Court held that the exhusband’s death “did not divest the circuit court of jurisdiction over the marital property, nor did it eliminate the necessity of equitably dividing the marital property.”

WORKERS COMP & ESTATES – n KRS 342.180 did not apply to money received by an estate when a worker died without dependents: Williams v. Farmers Stockyard, Inc. (COA 8/7/2009)

Williams v. Farmers Stockyard, Inc.
2008-CA-000785 8/7/09 2009 WL 2408399

Opinion by Judge Caperton; Senior Judge Buckingham concurred; Judge Stumbo dissented by separate opinion.

On discretionary review, the Court affirmed a judgment of the circuit court reversing a district court order regarding creditors’ claims to workers’ compensation benefits paid to the estate of a deceased worker. The Court held that the creditor exemption in KRS 342.180 did not apply to money received by an estate when a worker died without dependents.

Wills – Holographic will, conditional will, extrinsic evidence: Fisher v. Gray (COA 7/2/2009)

Fisher v. Gray
2008-CA-000171 07/02/2009 2009 WL 1884425 DR Pending

Opinion by Judge Keller; Judge Wine concurred; Senior Judge Lambert dissented by separate opinion.

The Court affirmed a summary judgment of the circuit court entered in favor of one of three sisters in an original action filed pursuant to KRS 394.240, asserting that their father’s holographic will was a conditional will and that it was without effect because the condition did not occur. The Court held that the trial court did not err in relying upon extrinsic evidence or in concluding that the instrument was conditional and that the condition did not occur. Extrinsic evidence was admissible to prove the circumstances surrounding the execution of the will to construe the language that the will was “written in case of emergency,” where the disposition of the estate was unnatural. The Court then held that the trial court did not err in finding that the father intended the will to be conditional upon his death due to an emergency during an upcoming surgical procedure. Therefore, the trial court did not err in when it found, as a matter of law, that the father died intestate when he died eight years later from lung cancer, allowing all three sisters to share equally in their father’s estate.

Wills & Estates – contingent beneficiaries: Hammons v. Hammons (COA 2/13/2009)

Hammons v. Hammons
2007-CA-002312
02/13/2009
2009 WL 350663
Opinion by Judge Lambert; Judge Taylor and Senior Judge Graves concurred.

The Court affirmed a summary judgment, declaration of rights and order quieting title in favor of the widow of appellants’ deceased father.

The Court held that the trial court did not err in finding that appellants only possessed a contingent, rather than a vested remainder in their father’s property. The explicit provisions in the will required that appellants or one of their heirs survive appellee to inherit the property remaining from her life estate and therefore, their interest by definition was contingent. The Court also held that the trial court did not err in finding that appellants were not entitled to any right of inspection or an accounting of the property.

Probate, will execution and undue influence in will contest: AMOS V. CLUBB (COA 10/3/2008)

AMOS V. CLUBB
PROBATE:  Will Exection, Undue Influence Issue
2007-CA-001181
PUBLISHED: REVERSING AND REMANDING
PANEL: LAMBERT, JAMES PRESIDING; STUMBO, THOMPSON CONCUR
OLDHAM COUNTY
DATE RENDERED: 10/3/2008

This was a will contest between a man’s wife and stepdaughter on one side and his sisters on the other. Terry Clubb owned a one-third interest in the family farm in Oldham County. After going to the doctor for difficulty swallowing, he learned that he had a horribly aggressive form of esophageal cancer, and he died 25 days later. Soon after receiving the diagnosis, he made arrangements to leave his interest in the farm to his sisters to preserve it. Later, and even though the disease was advancing swiftly and there wasn’t much time to act, he made arrangements to leave his estate to his wife and stepdaughter with no mention of his sisters. The Circuit Court granted summary judgment for the wife and stepdaughter and the Court of Appeals reversed in favor of the sisters. The Court found that there was ample evidence tied to the Bye v. Mattingly badges of undue influence to send the case to the jury.

One statement, however, stands out. The Court of Appeals noted “that the extreme pain Terry was in, combined with the levels of medication he was taking, could easily have amounted to mental impairment.” When taken in the context of a disease that progressed so rapidly and brutally, that observation makes sense. The statement, however, should not be construed as a blanket statement that pain medication is a badge of incapacity in all cases. Appropriate testimony should be required to support such an assertion.

Digested by Jim Worthington

Jury’s determination of testamentary capacity when voiding will was res judicata on capacity (but not on undue influence) for will executed 16 days earlier: ROTHWELL V. SINGLETON (COA 6/6/2008)

ROTHWELL V. SINGLETON
WILLS AND ESTATES:  Testamentary capacity and res judicata
2007-CA-001348
PUBLISHED:  REVERSING AND REMANDING
PANEL:  THOMPSON PRESIDING; KELLER, GRAVES CONCUR
LINCOLN COUNTY
DATE RENDERED: 6/6/2008

This published Court of Appeals will contest case involves the usual issues of capacity and undue influence. What makes this one of some interest is the fact that it involved a Will dated December 12, 1999 and that, in an earlier action, a jury was asked to consider a will dated December 28, 1999. The jury determined and the court held that the decedent had capacity on December 28th but that will was void because it was the result of undue influence. The question before the court in the case at bar was whether the determination of capacity as of December 28th was res judicata as to the question of capacity on December 12th of the same year. The trial court held that it was, but the Court of Appeals reversed and held that the only issue at hand was capacity as of December 12. The Court of Appeals indicated that “[on remand, the appellant will have an onerous burden.” The Court did not indicate whether the will’s proponent would be able to inform the about the testator’s capacity on December 28th.

Digested by Jim Worthington