JEAN O'BRIEN; WILLIAM HAMMONS; TOM HAMMONS; GRAHAM KASH; AND LEWIS KASH v. KAREN KASH WALKER; AND MARK A. CAREY, ESQ., ADMINISTRATOR OF THE ESTATE OF RAYMOND B. KASH
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RENDERED:
NOVEMBER 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000976-MR
JEAN O'BRIEN; WILLIAM HAMMONS;
TOM HAMMONS; GRAHAM KASH; AND
LEWIS KASH
v.
APPELLANTS
APPEAL FROM LEE CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR., JUDGE
ACTION NO. 01-CI-00090
KAREN KASH WALKER; AND
MARK A. CAREY, ESQ.,
ADMINISTRATOR OF THE ESTATE OF
RAYMOND B. KASH
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, SCHRODER AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Jean O’Brien, William Hammons, Tom Hammons,
Graham Kash, and Lewis Kash (hereinafter appellants) have
appealed from an order of the Lee Circuit Court entered on April
9, 2002, which denied the appellants’ motion to amend their
complaint and to set aside the order dismissing their original
complaint.
Having concluded that the trial court did not err in
denying the appellants’ motion to amend, we affirm.
Raymond B. Kash died on September 14, 2000, as a
resident of Beattyville, Lee County, Kentucky.
On October 23,
2000, Raymond’s purported holographic will was admitted to
probate by the Lee District Court.1
The will was dated June 5,
1941, and provided that Homer Kash, Raymond’s brother, was
entitled to Raymond’s entire estate.2
According to the petition
for probate, the estimated value of Raymond’s estate was
$7,306,502.87 in personal property and over $100,000.00 in real
property.
Raymond had given his holographic will to Homer, and
Homer had kept the will in his possession until he died in 1983.3
Homer was survived by his wife, Ruth Kash, and a daughter, Karen
Kash Walker, one of the appellees herein.
Ruth took possession of the will.4
After Homer’s death,
Since Homer was deceased at
the time of Raymond’s death in 2000, Karen claimed that she was
1
No. 00-P-00078.
2
Raymond was never married.
3
The appellants’ complaint lists Homer’s death as occurring in 1986.
However, according to Karen’s deposition testimony, her father died in 1983.
4
According to Ruth’s testimony, the will was in a filing cabinet in the
couple’s home at the time of Homer’s death. After Homer died, she placed the
will in her safety deposit box for a brief period, but she eventually decided
to keep the will in one of her Bibles.
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entitled to Raymond’s entire estate.
Mark A. Carey, the other
appellee herein, was named administrator of Raymond’s estate.5
On May 16, 2001, the appellants, who are all nieces
and nephews of Raymond, filed a complaint in Lee Circuit Court
alleging that Raymond’s holographic will was invalid because it
did not meet the requirements of KRS6 394.040.7
Specifically,
the appellants claimed that the will was not written entirely in
Raymond’s handwriting and that it had not been kept in his
possession since 1941.
The appellants asked for the holographic
will to be set aside and for Raymond’s estate to be distributed
according to Kentucky’s intestate succession statutes.8
On June 18, 2001, the appellees filed a motion to
dismiss the appellants’ complaint.
In support of their motion,
the appellees argued that there was sufficient expert testimony
during the probate proceedings to establish that the will was
5
Carey is an attorney residing in Marietta, Georgia. Carey’s wife and
Karen’s daughter-in-law are employed at the same law firm in Georgia.
6
Kentucky Revised Statutes.
7
In order for a holographic will to be valid, KRS 394.040 requires that the
entire will be in the handwriting of the testator:
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.
8
See KRS Chapter 391.
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written wholly in Raymond’s handwriting and that it therefore
met the requirements of KRS 394.040.
On July 23, 2001, after
the appellants did not respond to the appellees’ motion to
dismiss, the trial court entered an order dismissing the
appellants’ complaint.
On July 31, 2001, the appellants filed a motion to
alter, amend, or vacate the trial court’s previous order
dismissing their complaint.
In support of their motion, the
appellants argued, inter alia, that on July 9, 2001, they had
agreed with the appellees to a 90-day discovery period, and that
the trial court should therefore postpone ruling on the
appellees’ motion to dismiss.
On August 8, 2001, the trial
court entered an order holding the appellants’ motion to alter,
amend, or vacate in abeyance, and a hearing on the matter was
eventually scheduled for December 5, 2001.
On November 30, 2001, the appellants filed a motion to
amend their original complaint.
Specifically, the appellants
argued that Ruth, Homer’s widow, had somehow deceived Raymond
into thinking that he had no will, which according to the
appellants, allowed Ruth’s daughter Karen to receive all of
Raymond’s estate.
In their brief to this Court, the appellants
claim that Ruth’s conduct constituted “tortious interference
with an inheritance.”
On April 9, 2002, after finding that “the
facts of this case do not support a cause of action” for
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tortious interference with an inheritance, the trial court
denied the appellants’ motion to amend their complaint and
lifted the stay on its previous order dismissing the appellants’
original complaint.
This appeal followed.
The appellants’ sole claim of error on appeal is that
the trial court erred by denying their motion to amend their
complaint.
In particular, the appellants argue:
Even though the [trial] court may have
properly dismissed the original claim, it
should have allowed the amended complaint to
go forward. The [trial] court allowed
discovery to go forward to serve as a basis
to rule on the [m]otion to [d]ismiss. That
discovery revealed that Raymond [ ] had a
valid, sincere belief that he had no will
and that Ruth [ ] had conspired with family
members to keep that knowledge from Raymond
[ ].
According to the appellants, Ruth’s alleged fraudulent conduct
prevented Raymond from realizing that he had a will, which led
to Karen being “unjustly enriched.”
Thus, appellants argue that
their claim for tortious interference with an inheritance should
have been allowed to go forward.
We disagree.
In First National Bank of Cincinnati v. Hartmann,9 this
Court explained that while amended complaints should be freely
allowed, a trial court may deny a motion to amend where the
proposed amended complaint fails to state a claim upon which
relief can be granted:
9
Ky.App., 747 S.W.2d 614, 616 (1988).
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Although amendments should be freely
allowed, the trial court has wide discretion
and may consider such factors as the failure
to cure deficiencies by amendment or the
futility of the amendment itself.
In the case at bar, we conclude that the appellants’ proposed
amendment fails to state a claim upon which relief can be
granted and that the trial court therefore did not err in
denying the appellants’ motion to amend.
In their brief to this Court, the appellants have
cited the Restatement (Second) of Torts, Section 774B as the
basis for the cause of action in their proposed amended
complaint.
The text of that provision states in full as
follows:
One who by fraud, duress or other
tortious means intentionally prevents
another from receiving from a third person
an inheritance or gift that he would
otherwise have received is subject to
liability to the other for loss of the
inheritance or gift.10
In the case sub judice, the appellants do not dispute
the fact that Raymond gave Homer the holographic will in
question and that after Homer’s death, Ruth subsequently took
possession of the will.
Nowhere have the appellants alleged
that Raymond ever asked for the will to be returned to him or
for the will to be destroyed, or that Ruth or Karen ever
tortiously refused such a request.
10
The appellants have also not
Restatement (Second) of Torts, § 774B (1979).
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alleged that Ruth or Karen ever affirmatively misled Raymond
into thinking that he had no will.
In short, the appellants
have not alleged any conduct on the part of Ruth or Karen which
would establish a cause of action under the tortious
interference with an inheritance provision of Section 774B.
Rather, the appellants have merely claimed that Ruth and/or
Karen remained silent after they may have learned from other
people that Raymond believed he did not have a will.
This
silence simply does not rise to the level of tortious conduct
under Section 774B.
Accordingly, the trial court did not err by
denying the appellants’ motion to amend their complaint.
Based on the foregoing, the order of the Lee Circuit
Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
H. Patrick King, Jr.
Louisville, Kentucky
Jeffrey A. Darling
Lexington, Kentucky
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