Constructive Knowedge of Will: BENNETT V . NICHOLAS (COA 9/7/2007)

BENNETT V . NICHOLAS
TORTS: WRONGFUL DEATH ACTION
PROBATE: CONSTRUCTIVE KNOWLEDGE OF WILL
2006-CA-001467
PUBLISHED: REVERSING AND REMANDING
PANEL: HOWARD, PRESIDING; ACREE & LAMBERT CONCUR
COUNTY: MCCRACKER
DATE RENDERED: 09/07/2007

CA reverses and remands TC dismissal of malpractice claims.

Decedent’s nephew was appointed as the administrator of her estate and then filed a wrongful-death action against the appellees. Appellees deposed decedent’s former husband and discovered that she had a valid will appointing husband as Executor. Appellees moved to dismiss  the complaint; Appellant sought leave to have will probated and husband appointed Executor and substituted as personal representative for litigation purposes. TC granted motion to dismiss.

First, the dismissal was actually an entry of SJ against the personal representative and must be reviewed as such. Second, CA holds that Kentucky law is clear that appointment of nephew was a valid, voidable, NOT VOID, order, and that all actions taken, including filing suit, were valid. While there was absolutely no evidence, as appellees suggest, that nephew knew of the will prior to seeking appointment, such knowledge would be immaterial regardless. The motion to allow the will to be probated and the new personal representative to be substituted should have been granted; summary judgment was improper. Reversed and remanded.

Digested by John E. Hamlet.

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