TRACEY CRAMER AND PAUL B. CRAMER, III, IN THEIR INDIVIDUAL CAPACITIES AND AS CO-EXECUTORS OF THE ESTATE OF PAUL B. CRAMER, JR. v. GAYLE L. POWELL
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October 24, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000350-MR
TRACEY CRAMER AND PAUL B. CRAMER,
III, IN THEIR INDIVIDUAL CAPACITIES
AND AS CO-EXECUTORS OF THE ESTATE
OF PAUL B. CRAMER, JR.
v.
APPELLANTS
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JULIA HYLTON ADAMS, JUDGE
ACTION NO. 00-CI-00017
GAYLE L. POWELL
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND TACKETT, JUDGES.
TACKETT, JUDGE.
Tracey Cramer (Tracey) and her brother, Paul
Benton Cramer, III (Benton), appeal from Clark Circuit Court’s
judgment of January 14, 2002, in which a jury found that the
document dated December 2, 1997 that had previously been
probated in the Clark District Court as the Last Will and
Testament of Paul B. Cramer, Jr. (Paul), was not Paul’s true
Last Will and Testament.
On appeal, Tracey and Benton, Paul’s children, argue
that the Clark Circuit Court erred when it failed to grant
either a directed verdict or a judgment notwithstanding the
verdict because the record contains no evidence that Paul lacked
testamentary capacity nor does the record contain evidence of
undue influence.
Tracey and Benton argue that the admission of
attorney Turney Berry’s testimony was prejudicial, that the
admission of Paul’s purported 1991 holographic will was
prejudicial and also the admission of the settlement agreement
between Tracey and Benton was prejudicial.
Finding that the
circuit court should have granted a directed verdict in Tracey’s
and Benton’s favor, we reverse and remand.
As the record reveals, Paul B. Cramer, Jr. led an
interesting life before his death in August of 1999 of a brain
tumor.
Paul was born in Virginia in 1926.
During the early
1950’s, he attended the University of Kentucky, and, while
there, met Carol Mangione (Mangione), who became one of his life
long friends.
After college, Paul joined the U.S. Navy and flew
jet fighters during the Korean Conflict.
After he left the
Navy, Paul became a commercial airline pilot.
Sometime in the
1950’s, Paul eventually met his first wife, Daneen.
They
married and had two children, Benton, born in 1958, and Tracey,
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born in 1961.
During the 1960’s, Paul and Daneen divorced,
reconciled briefly and then divorced again.
During the 1970’s,
Paul lived on a farm in Virginia and raised horses, one of his
lifelong passions.
In 1977, while visiting Hamburg Place, Paul
met and began a romantic relationship with Gayle Powell (Gayle).
In 1987, Paul moved to Kentucky and bought a horse farm in Clark
County.
Gayle eventually moved into a mobile home on Paul’s
property, although at times she lived with Paul in the main
house, and helped Paul tend his horses.
In early 1998 Paul
evicted Gayle from his property.
On May 29, 1995, a longtime friend, George Hastings
(Hastings), and his new wife, Carol, visited Paul at his farm.1
While there, Hastings was shot and killed.
In 1996, Paul was
indicted for and later convicted of manslaughter in the second
degree.
He was sentenced to seven years.
On June 28, 1997,
while free pending appeal, Paul suffered a severe stroke.
As a
result, he suffered from aphasia, the inability to speak.
Paul,
however, was able to perform many day-to-day activities, such as
grocery shopping, driving and tending to his horses.
After Paul’s stroke, Carol Mangione began to spend
more time with Paul and helped him with certain legal matters.
In November of 1997, Mangione helped Paul file eviction
proceedings against Gayle.
With Carol’s help, Paul went to see
1
There is no evidence in the record that Carol Hastings was the same person
as Carol Mangione.
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Marvin Clem (Clem), an attorney, so that he could make a will.
On December 2, 1997, Mangione took Paul to Clem’s Lexington
office to review and execute the will.
While there, Mangione
attended the meeting between Paul and Clem and acted as Paul’s
interpreter.
signed it.
The record reveals that Paul read the will and
In the 1997 will, Paul left his entire estate to his
daughter, Tracey.
In June of 1998, this Court affirmed Paul’s conviction
for manslaughter, and in August of 1998, Paul began serving his
seven-year prison sentence.
On August 23, 1999, Paul died of an
aggressive brain tumor.
On October 20, 1999, Tracey submitted the 1997 will to
the Clark District Court for probate.
Subsequently, Gayle came
forward with an holographic will dated June 15, 1991, which also
purported to be Paul’s last will and testament.
According to
the 1991 will, Gayle was to receive Paul’s entire estate, except
for the needs of his stepmother, Helen Cramer, until Helen’s
death.
On January 12, 2000, Gayle filed suit in the Clark
Circuit Court against Tracey and Benton and claimed that the
1997 will was not Paul’s true last will and testament arguing
that Paul lacked testamentary capacity and had been unduly
influenced by Carol Mangione.
After a three and half day trial,
a jury found that the 1997 will was not Paul’s last will and
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testament.
The Clark Circuit Court entered its judgment to that
effect on November 6, 2001, and remanded the matter to the Clark
District Court, Probate Division, presumably to take up the
matter of the 1991 holographic will.
This appeal followed.
On appeal, Tracey and Benton argue that the Clark
Circuit Court erred when it failed to grant them a directed
verdict or in the alternative, failed to grant a judgment
notwithstanding the verdict regarding the issue of testamentary
capacity.
Citing Bye v. Mattingly, Ky., 975 S.W.2d 451 (1998),
Tracey and Benton argue that Gayle presented no evidence that
that Paul lacked testamentary capacity.
Tracey and Benton cite
the testimony of numerous lay witnesses who testified that,
after the stroke, Paul was still capable of engaging in normal
day-to-day activities such as driving, shopping and tending his
horses and argue that since Paul could engage in such
activities, he still possessed his testamentary capacity.
Furthermore, according to Tracey and Benton, every physician
that testified regarding Paul merely opined that he suffered
from aphasia, the inability to speak.
Alternatively, Tracey and
Benton argue that even if Paul had been mentally ill in late
1997, he still had the necessary capacity to make a will due to
the lucid interval doctrine.
Although Tracey and Benton admit
that Dr. Kathleen Riggs, Paul’s former psychiatrist, testified
that due to the stroke, Paul suffered from an organic brain
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syndrome, they argue that this did not rebut the presumption
raised by the lucid interval doctrine that Paul possessed
testamentary capacity when the 1997 will was executed.
Also, Tracey and Benton argue that the Clark Circuit
Court erred when it failed to grant a directed verdict or in the
alternative, failed to grant a judgment notwithstanding the
verdict regarding the issue of undue influence.
According to
the Supreme Court of Kentucky:
Undue influence is a level of persuasion
which [sic] destroys the testator’s free
will and replaces it with the desires of the
influencer. In discerning whether influence
on a given testator is “undue”, courts must
examine both the nature and the extent of
the influence. First, the influence must be
of a type which [sic] is inappropriate.
Influence from acts of kindness, appeals to
feeling, or arguments addressed to the
understanding of the testator are
permissible. Influence from threats,
coercion and the like are improper and not
permitted by law. (Citations omitted.) Bye
v. Mattingly, supra at 457.
Tracey and Benton argue convincingly that Gayle presented no
evidence whatsoever that Mangione did anything while in Paul’s
presence to influence him.
Furthermore, if Mangione did do
anything to influence Paul, then whatever she may have done were
“acts of kindness, appeals to feeling, or arguments addressed to
the understanding of the testator.”
Thus, whatever she may have
done was appropriate as a matter of law.
Id. at 457.
Also,
Tracey and Benton point out that Gayle presented no evidence
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that Mangione threatened or coerced Paul in any way.
The
Supreme Court of Kentucky has set forth indicia or “badges” that
indicate undue influence.
According to the high court:
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 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. (Citations omitted.) Bye
v. Mattingly, supra at 457.
Tracey and Benton argue that Paul was not mentally impaired;
that the 1997 will was not unnatural; that Paul had a life long
relationship with his daughter, Tracey; that Tracey did not
participate in making the will; that Tracey never possessed the
will; that Tracey never restricted Paul’s contact with other
people and that she never had any control over Paul’s business
affairs.
Tracey and Benton also contend that the circuit court
prejudicially erred when it admitted the testimony of Turney
Berry (Berry).
Berry, an attorney, testified as an expert on
Gayle’s behalf and opined that Marvin Clem, the scrivener of the
1997 will, did not make sufficient inquiry to determine whether
Paul possessed the requisite testamentary capacity.
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Citing Bye
v. Mattingly, Tracey and Benton insist that Berry’s testimony
was completely irrelevant and clearly prejudicial because it
implied that Clem acted with some “nefarious” purpose in mind.
They argue that Berry’s testimony indeed shifted the focus of
the trial from the relevant issues to Clem’s performance as an
attorney.
Further, Tracey and Benton argue that introduction of
the 1991 will was prejudicial because Gayle’s complaint focused
on the invalidity of the 1997 will, not the validity of the 1991
holographic will.
They also argue that the settlement agreement
they signed in 1998 should not have been admitted into evidence.
According to Tracey and Benton, they executed the agreement in
order to avoid paying gift taxes on the portion of the estate
that she intended to give to Benton.
Also, they cite KRE 408,
arguing that the settlement agreement is inadmissible because it
was made as part of their compromise negotiations.
They cite
Simmons v. Small, Ky., 986 S.W.2d 452 (1998) for the proposition
that introduction of a settlement agreement, which was otherwise
irrelevant, for impeachment purposes was error.
Regarding the standard of review for directed
verdicts, the Supreme Court of Kentucky stated:
A motion for directed verdict admits the
truth of all evidence which [sic] is
favorable to the party against whom the
motion is made. Upon such motion, the court
may not consider the credibility of evidence
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or the weight it should be given, this being
a function reserved to the trier of fact.
Moreover, the trial court should favor the
party against whom the motion is made with
all inferences which [sic] may reasonably be
drawn from the evidence. Upon completion of
the foregoing evidentiary review, the trial
court 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.” If the trial
court concludes that such would be the case,
a directed verdict should be given.
Otherwise, the motion should be denied.
(Citations omitted.) NCAA v. Hornung, Ky.,
754 S.W.2d 855, 860 (1988). See also, Lewis
v. Bledsoe Surface Min. Co., Ky., 798 S.W.2d
459 (1990) and Smith v. Wal-Mart Stores,
Inc., Ky., 6 S.W.3d 829 (1999).
The Kentucky Supreme Court thoroughly addressed the
issue of testamentary capacity in its landmark case Bye v.
Mattingly.
The high court stated:
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. Testamentary capacity is only
relevant at the time of execution of a will.
"Kentucky is committed to the doctrine of
testatorial absolutism." 1 Ky. Prac. -Probate Practice & Procedure, § 367 (Merritt
2d ed.). 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. The degree of mental capacity
required to make a will is minimal. The
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minimum level of mental capacity required to
make a will is less than that necessary to
make a deed, or a contract.
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. "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." (Citations
omitted.) Bye v. Mattingly, supra at 455456.
According to the record, David Cox, who knew Paul since 1991,
testified that while Paul was different after the stroke, he
still worked very hard to maintain his horse farm.
Lynn Kelly
also testified that after the stroke, Paul still rode his
horses, still maintained his daily routine, still drove his car
and still operated machinery on his farm.
Marvin Clem, the
attorney who prepared the 1997 will, testified that Paul arrived
at his office on time, and that despite his inability to talk,
Paul understood what Clem said and that Paul further responded
to both Clem and Mangione.
Clem opined that Paul possessed the
requisite testamentary capacity on December 2, 1997, to execute
his will.
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Furthermore, Linda Scott (Scott), a social worker for
the Veteran’s Administration who testified on Gayle’s behalf,
testified that after his stroke Paul had been hospitalized in
the VA’s rehabilitation unit.
According to Scott, the unit
exists to help stroke victims regain their functioning and
stresses physical, speech and occupational therapy.
Scott
testified that Paul did not suffer from any physical problem as
a result of the stroke and that while hospitalized received
speech therapy for his aphasia until he was discharged from the
hospital.
Susan Willard (Willard), a registered nurse who had
worked at the VA hospital for twenty-seven years, testified on
Gayle’s behalf.
Willard testified that Paul communicated by
writing on a note pad.
Willard testified that she could read
Paul’s handwriting and when asked, Paul could correctly name the
medications that had been prescribed for him; although, he did
not always give the correct answer.
The record reveals that Paul knew the natural objects
of his bounty.
As the 1997 will reflects, Paul was aware that
he had two children, Tracey and Benton.
Paul knew he had an
obligation to them; however, he chose not to leave anything to
his son, Benton.
estate.
Paul knew the character and value of his
As the record reveals, up to the time of his
imprisonment, Paul did the work necessary to maintain his horse
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farm.
Paul disposed of his property according to his fixed
intentions.
He left his entire estate to his daughter, Tracey.
Regarding a mentally ill testator, the Supreme Court
has 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. By employing this
doctrine, citizens of the Commonwealth who
suffer from a debilitating mental condition
are still able to dispose of their property.
The lucid interval doctrine is only
implicated when there is evidence that a
testator is suffering from a mental illness;
otherwise the normal presumption in favor of
testamentary capacity is operating. The
burden is placed upon those who seek to
overturn the will to demonstrate the lack of
capacity. The presumption created is a
rebuttable one, so that evidence which
demonstrates conclusively that the testator
lacked testamentary capacity at the time of
the execution of the will results in
nullifying that will. (Citations omitted.)
Bye v. Matttingly, supra at 456.
According to the record, Dr. Kathleen Riggs, a
psychiatrist who treated Paul for memory loss before the stroke,
testified that when she saw Paul on August 6, 1997, in her
opinion he was not competent.
However, Dr. Riggs did not
examine Paul on that day, but merely spoke with him for a few
minutes before suggesting he seek help from the local Veteran’s
Administration hospital.
Dr. Robert J. Fallis, a board
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certified neurologist, testified that the part of Paul’s brain
that was responsible for processing language had been destroyed
by the stroke and that this should have affected Paul’s ability
to perform abstract reasoning.
However, Dr. Fallis never
examined Paul but speculated that his mental capacity had been
affected by the stroke.
Given the operation of the lucid
interval doctrine, neither Dr. Riggs’ nor Dr. Fallis’ testimony
rebutted the strong presumption that Paul possessed testamentary
capacity when he executed the 1997 will.
Taking all the facts
favorable to Gayle and making all reasonable inferences that may
be drawn from it, the jury’s verdict was flagrantly against the
evidence.
Given the operation of the lucid interval doctrine,
Gayle, who had the burden of proof, did not rebut the
presumption that Paul possessed testamentary capacity on
December 2, 1997, when he executed his will.
The circuit court
erred when it denied Tracey’s and Benton’s motion for directed
verdict.
At trial, Gayle’s second argument was that Carol
Mangione unduly influenced Paul.
It is important to note
Mangione took nothing from the 1997 will.
To have undue
influence, the influence must be inappropriate such as influence
from threats or coercion which are not permitted by law.
457.
Id. at
And the influence must be so strong that it overbore the
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testator’s free will so that the testator disposed of his estate
against his wishes.
Id.
According to the record, Mangione assisted Paul in two
legal matters, Gayle’s eviction and the 1997 will.
Regarding
the will, Mangione found the attorney, Marvin Clem, who prepared
the will, she drove Paul to Clem’s office and also acted as
Paul’s interpreter.
At trial, Gayle presented no evidence that
Mangione influenced Paul.
Gayle merely showed that Mangione had
the opportunity to influence Paul.
“Merely demonstrating that
the opportunity to exert such influence is not sufficient to
sustain the burden of proof.”
Id. at 458.
Beyond Paul’s
aphasia, this case bears none of the hallmarks of undue
influence.
Id. at 457.
Taking all the facts favorable to Gayle
and making all reasonable inferences that may be drawn from it,
the jury’s verdict was flagrantly against the evidence, and this
Court finds that the circuit court erred when it denied Tracey’s
and Benton’s motion for directed verdict.
We disagree with Tracey and Benton that the circuit
court erred when it allowed Turney Berry to testify.
In Kesler
v. Shehan, Ky., 934 S.W.2d 254 (1996), the Supreme Court
reversed this Court after this Court had reversed a jury verdict
on the grounds that an expert witness had offered an opinion
going to the ultimate fact in a will contest case.
In Kesler,
plaintiff called an attorney as an expert witness to demonstrate
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that the scrivener of the will had either failed to note or
ignored various indicia of undue influence.
The Supreme Court
stated:
[Plaintiff’s expert] did not state that
undue influence was actually present here.
He merely testified that the attorney should
have been on notice to do more to assure
himself about the voluntariness of the
client’s action. Under the circumstances
presented here, the jury was entitled to
consider that the attorney had overlooked or
ignored undue influence and therefore had
failed to do enough to form a credible
opinion that his client was free from undue
influence. Id. at 256.
Similarly in the case sub judice, Berry never testified that
Paul lacked testamentary capacity.
He merely opined that the
attorney could have done more to assure himself that Paul
possessed the necessary testamentary capacity.
In light of
Kesler, Berry’s testimony was admissible and the circuit court
did not err.
During the trial, Tracey and Benton failed to object
to the introduction of both the 1991 holographic will and the
settlement agreement.
“It goes without saying that errors to be
considered for appellate review must be precisely preserved and
identified in the lower court.”
Skaggs v. Assad, By and Through
Assad, Ky., 712 S.W.2d 947, 950 (1986).
Since they failed to
preserve these issues, we shall not address them.
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Thus, for the foregoing reasons, we reverse the
judgment of the Clark Circuit Court and remand the case for the
circuit court to enter an order directing a verdict in favor of
appellants, Tracey Cramer and Paul Benton Cramer, III.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Schuyler J. Olt
Pedley, Zielke & Gordinier
Louisville, Kentucky
Homer Parrent, III
Parrent & Vish
Louisville, Kentucky
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