JACQUELINE FARMER, EXECUTRIX OF THE ESTATE OF FLORENCE CLARK TODD; JACQUELINE T. FARMER; DAMIE ANDERS HUSSON; AND ELIZABETH ANDERS V. MICHAEL D. MEUSER, EXECUTOR OF THE ESTATE OF JOHN H. CLARK; UNIVERSITY OF KENTUCKY EQUINE RESEARCH FOUNDATION, INC.; PHYLLIS A. CLARK; KAREN R. RICHARDS; STEVEN C. CLARK; JANET CLARK BEARD; SUSAN E. POPP; AND CATHY CLARK WORRALL
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RENDERED: April 7, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003123-MR
JACQUELINE FARMER, EXECUTRIX OF
THE ESTATE OF FLORENCE CLARK TODD;
JACQUELINE T. FARMER;
DAMIE ANDERS HUSSON; AND
ELIZABETH ANDERS
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS CLARK, JUDGE
ACTION NO. 97-CI-02005
MICHAEL D. MEUSER, EXECUTOR
OF THE ESTATE OF JOHN H. CLARK;
UNIVERSITY OF KENTUCKY EQUINE
RESEARCH FOUNDATION, INC.;
PHYLLIS A. CLARK; KAREN R. RICHARDS;
STEVEN C. CLARK; JANET CLARK BEARD;
SUSAN E. POPP; AND CATHY CLARK WORRALL
AND:
APPELLANTS
APPELLEES
APPEAL NO. 1998-CA-003197-MR
MICHAEL D. MEUSER, EXECUTOR
OF THE ESTATE OF JOHN H. CLARK
CROSS-APPELLANT
v.
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS CLARK, JUDGE
ACTION NO. 97-CI-02005
JACQUELINE FARMER, EXECUTRIX OF
THE ESTATE OF FLORENCE CLARK TODD;
JACQUELINE T. FARMER;
DAMIE ANDERS HUSSON; ELIZABETH ANDERS;
PHYLLIS A. CLARK; KAREN R. RICHARDS;
STEVEN C. CLARK; JANET CLARK BEARD;
SUSAN E. POPP; AND CATHY CLARK WORRALL
CROSS-APPELLEES
OPINION
REVERSING AND REMANDING ON APPEAL
AFFIRMING ON CROSS-APPEAL
** ** ** ** **
BEFORE:
HUDDLESTON, MCANULTY, AND MILLER, JUDGES.
MILLER, JUDGE:
Jacqueline Farmer, executrix of the estate of
Florence Clark Todd, Jacqueline T. Farmer, Damie Anders Husson,
and Elizabeth Anders (appellants) bring this appeal from a
Judgment of the Fayette Circuit Court entered October 28, 1998,
upon a jury verdict.
Michael D. Meuser, executor of the estate
of John H. Clark, cross-appeals.
appeal.
We reverse and remand on
We affirm on cross-appeal.
This litigation involves the will of John H. Clark, a
prominent citizen of Fayette County, Kentucky, and a noted figure
in the equine industry.
In his declining years, Mr. Clark
executed a series of testamentary documents taking into
consideration his relatives.
On November 17, 1995, he executed
the will in question leaving his entire estate to the University
of Kentucky Equine Research Foundation, Inc. (UKERF).
Weeks
later, on January 10, 1996, Mr. Clark died at age seventy-six by
reason of two self-inflicted gunshot wounds.
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The November 17,
1995, will was entered for probate in the Fayette District Court
on January 12, 1996.
Meuser was appointed executor.
As
executor, he filed a petition in the Fayette Circuit Court on
June 3, 1997 seeking a declaration of rights.
Statutes (KRS) Chapter 418.
Kentucky Revised
He sought to uphold the will.
Appellants herein are the blood relatives of John H. Clark and
contestants of the will.
The initial question presented to the circuit court was
whether Mr. Clark's will was executed in conformance with the
requirements of KRS 394.040.
executed.
The court concluded it was properly
Thereafter, the matter came on for trial before jury.
It was submitted on the issues of testamentary capacity and undue
influence.
The jury found in favor of the will.
This appeal
followed.
The appellants raise four issues for our consideration:
(1) that the will was improperly executed; (2) that the
instructions rendered to the jury on the issues of testamentary
capacity and undue influence were improper; (3) that the court
erred in refusing to admit into evidence a videotape and still
photographs of the suicide scene; and (4) the court erred in
failing to join certain parties deemed necessary because they
were beneficiaries under a previous will.
On cross-appeal, Meuser, as executor of Mr. Clark's
will, contends he was entitled to a directed verdict on the
issues of testamentary capacity and undue influence.
We first consider the execution of the will.
Acting
out of the ordinary, Meuser (drafter of the will, a subscribing
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witness thereto, and named executor therein) “printed” his name
as a subscribing witness.
problems at hand.
This laxness has created one of the
The burden of proving proper execution of a
will is, of course, upon the proponents of the instrument.
See
Hall v. Hall, 153 Ky. 379, 155 S.W. 755 (1913), and Smith v.
Neikirk, Ky. App., 548 S.W.2d 156 (1977).
The question before us
is whether the proponents of Mr. Clark's will sufficiently proved
that execution of same was in conformance with KRS 394.040,
notwithstanding Meuser's name as a subscribing witness was
printed rather than written.
KRS 394.040 provides as follows:
No will is valid unless it is in writing with
the name of the testator subscribed thereto
by himself, or by some other person in his
presence and by his direction. If the will
is not wholly written by the testator, the
subscription shall be made or the will
acknowledged by him in the presence of at
least two (2) credible witnesses, who shall
subscribe the will with their names in the
presence of the testator, and in the presence
of each other. (Emphasis added.)
Meuser testified that it was not his custom to print
his name as a signature.
This is substantiated by the fact that
his name as drafter of the instrument appears in cursive form.
The uncustomary printing of a name by a subscribing
witness may well be a fatal act if the witness is deceased or
otherwise unavailable and it is necessary to prove his signature.
Such is not the case before us, however, as the authenticity of
the printed signature is not in dispute.
It is uncontested that
Meuser printed his name in the capacity of a subscribing witness.
The quandary arises in that it is affixed in print rather than
cursive.
We are presented with no authority directly addressing
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this issue.
As the printed signature was adequately
authenticated, however, we believe the burden of proving proper
execution was sustained.
We now turn to the instructions rendered by the court.
Appellants make two arguments pertaining to same.
They contend
the jury should have been instructed that when both lack of
testamentary capacity and undue influence are at issue, the
evidence necessary to prove undue influence need not be as
convincing as would be necessary to prove either alone.
See
Roland v. Eibeck, Ky., 385 S.W.2d 37 (1964), and Hines v. Price,
310 Ky. 758, 221 S.W.2d 673 (1949).
It is true that a person of
infirm mind might be more easily influenced, and the law
recognizes such.
We know of no rule of law, however, requiring
an instruction on this premise.
well understand.
This is something a jury can
It is, of course, a principle to be considered
by the court in determining submissibility.
The more serious complaint about the instructions is
the trial court's decision to instruct on clear and convincing
evidence rather than a mere preponderance.
We deem this error.
Appellees direct us to the cases of Bye v. Mattingly,
Ky., 975 S.W.2d 451 (1998), and Hardin v. Savageau, Ky., 906
S.W.2d 356 (1995), for the principle that clear and convincing
evidence is the appropriate standard to prove undue influence and
testamentary capacity.
We do not so believe.
In Hardin, it was
held that in all civil cases where the standard of proof is
greater than a preponderance it is necessary to state the
heightened standard in the instructions -- without definition.
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Hardin, however, addressed the matter of fraud incident to a
contract for sale of real estate.
The standard of proof in cases
of fraud has been, and perhaps always has been, that of clear and
convincing evidence.
(1922).
Larmon v. Miller, 195 Ky. 654, 243 S.W. 939
The Hardin court simply stated that the jury should be
instructed as such.
We have also reviewed Bye and, likewise, do
not believe it dispositive of the instant case.
We view neither
Bye nor Hardin as elevating the standard of proof in will cases
to the level of clear and convincing evidence.
It is well-established that the standard of proof in
undue influence and testamentary capacity cases is that of a
preponderance of evidence.
Henson v. Jones, 247 Ky. 465, 57
S.W.2d 498 (1933); McGee v. Brame, 176 Ky. 302, 195 S.W. 473
(1917); Murphy's Ex'r. v. Murphy, 146 Ky. 396, 142 S.W. 1018
(1912); and Wells v. Salyer, Ky., 452 S.W.2d 392 (1970); Carter
v. Carter, 216 Ky. 732, 288 S.W. 666 (1926).
We next address the question of the trial court's
exclusion of video and still photographs of the suicide scene.
This evidence was rejected because it was deemed more prejudicial
than probative.
Kentucky Rules of Evidence (KRE) 403.
Appellees
seem to contend that Mr. Clark's suicide was a rational end to
his life, and allowing the jury to view a depiction of the death
setting would add nothing.
Appellants contend the death scene is
probative of Mr. Clark's unsoundness of mind when he executed his
will a short time beforehand.
Trial courts are afforded great
latitude in the introduction or rejection of evidence.
Reversal
of a judgment erroneously admitting or excluding evidence will
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not be had absent prejudice to the substantial rights of a party.
See Bailey v. Hall, 295 Ky. 740, 175 S.W.2d 512 (1943).
It is
clear from the evidence that Mr. Clark took his own life.
In a
final note, he explained he was doing so because of poor health
and a desire not to be a burden to others.
We agree the
photographic description of the death scene, though probative,
would add little.
Mr. Clark died.
evidence.
The jury was adequately advised how and why
We will not reverse on the rejection of this
Ky. R. Civ. P. (CR) 61.01, and KRE 103.
Finally, appellants contend the trial court erred in
failing to require that beneficiaries under a previous will
executed by Mr. Clark be joined in this matter as necessary
parties.
We are not of the opinion that the court so erred.
do not deem those parties necessary under CR 19.01.
We
Nor, do we
think failure to join them is offensive to KRS 394.280(1).
Their
absence does not impede the resolution of the issues presented.
Generally, necessary parties are those benefitting from and
attempting to uphold a will, not those benefitting if the will
fails.
See Security Trust Co. v. Swope, 274 Ky. 99, 118 S.W.2d
200 (1938), modified, West v. Goldstein, Ky., 830 S.W.2d 379
(1992).
We do not read Scott v. Roy, 144 Ky. 99, 137 S.W. 858
(1911), modified, West v. Goldstein, Ky., 830 S.W.2d 379 (1992),
cited by appellants, as mandating a contrary result.
CROSS-APPEAL NO. 1998-CA-003197-MR
We perceive no merit to Meuser's cross-appeal.
He
urges that he was entitled to a directed verdict on the issues of
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testamentary capacity and undue influence.
CR 50.01.
We
disagree.
The rule on submissibility is, of course, that the
trial court must draw all fair and reasonable inferences from the
evidence in favor of the non-moving party.
If, after so doing,
reasonable minds may differ as to the conclusion to be drawn from
the evidence, a jury issue is presented.
365 S.W.2d 849 (1963).
See Lee v. Tucker, Ky.,
We review the denial of a directed
verdict under the clearly erroneous rule giving deference to the
trial court's decision.
See Bierman v. Klapheke, Ky., 967 S.W.2d
16 (1998), and Meyers v. Chapman Printing Company, Inc., Ky., 840
S.W.2d 814 (1992).
The record contains evidence that Mr. Clark, during his
last years, had been hospitalized and endured chronic problems
with depression, anxiety, and paranoia for which he was under
drug treatment.
His mental condition was suspect, and there is
evidence he was incapable of formulating an estate plan.
We
believe this evidence, superimposed upon his age, his general
mental and physical infirmities, and his ultimate suicide,
constitutes substantive evidence upon which a jury might
reasonably conclude that Clark lacked mental capacity and/or
suffered undue influence in the preparation and execution of his
last will.
The foregoing, together with his abrupt change of
heart in favor of UKERF's fund raising efforts in disposing of
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his entire estate, we think, creates submissible issues upon both
mental capacity and undue influence.1
For the foregoing reasons, the Judgment of the Fayette
Circuit Court is affirmed on cross-appeal and reversed and
remanded on direct appeal for proceedings consistent with this
opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS/CROSS
APPELLEES:
BRIEFS FOR APPELLEES/CROSSAPPELLANT:
J. Robert Lyons, Jr.
Bruce A. Rector
Lexington, Kentucky
Thomas W. Miller
David T. Faughn
Lexington, Kentucky
1
As appellants attacked Mr. Clark's will on grounds of undue
influence and testamentary capacity, only slight evidence of
undue influence was necessary for submission to the jury. 1
James R. Merritt, Kentucky Practice, §§ 541 and 550 (2d ed.
1984).
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