KENTUCKY TRUST COMPANY, INC. VS. WILKINSON (JOSEPH EDWARD), ET AL.Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
KENTUCKY TRUST COMPANY, INC.
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 01-CI-00168
JOSEPH EDWARD WILKINSON AND
KATHY MONDIE WILKINSON
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BEFORE: CLAYTON AND STUMBO, JUDGES; GRAVES,1 SENIOR JUDGE.
CLAYTON, JUDGE: Kentucky Trust Company (“KTC”) appeals a decision from
a Casey Circuit Court order dismissing an action to have a subject conveyance
declared an advancement pursuant to KRS 391.140.
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
KTC serves as Administrator of the estates of Marjorie L. Wilkinson
and Luil E. Wilkinson (husband and wife). On June 26, 2006, in its second
amended complaint, KTC sought an order from the Casey Circuit Court to set
aside a deed of conveyance from Marjorie L. Wilkinson, individually and as
attorney-in-fact for Luil Wilkinson, to their son, Joseph Edward Wilkinson because
the grantor was subject to undue influence and fraud and lacked the mental
capacity to execute the deed and the conveyance was made without consideration.
For the first time, in its amended complaint, KTC sought a declaratory
judgment from the trial court that the deed of conveyance constituted an
advancement against the grantee’s share of the intestate estates of Luil and
Marjorie Wilkinson. The trial court upheld the deed and ruled it did not have
jurisdiction over the advancement issue pursuant to KRS 24A.120. This appeal
KTC argues that the advancement issue should have been considered
by the trial court because it is an adversarial proceeding within the meaning of
KRS 24A.120, which reads, in pertinent part, as follows:
District Court shall have exclusive jurisdiction in:
(2) Matters involving probate, except matters contested in an
adversary proceeding. . . .
(3) Matters not provided for by statute to be commenced in Circuit
Court shall be deemed to be nonadversarial within the meaning of
subsection (2) of this section and therefore are within the jurisdiction
of the District Court. . . .
We find the issue of advancement to be a non-adversarial matter
involving probate, and as a result, jurisdiction resides exclusively in the district
court. KRS 391.140 does not explicitly permit circuit court jurisdiction in such
matters and therefore, in accordance with the language of KRS 24A.120, it is
deemed to be non-adversarial.
KTC further contends that the trial court has jurisdiction pursuant to
KRS 418.040, which reads:
In any action in a court of record of this
Commonwealth having general jurisdiction wherein it is
made to appear that an actual controversy exists, the
plaintiff may ask for a declaration of rights, either alone
or with other relief; and the court may make a binding
declaration of rights, whether or not consequential relief
is or could be asked.
We believe that in regards to the advancement issue no actual
controversy exists to make KRS 418.040 relevant on appeal. In a declaratory
judgment action, a court will not decide speculative rights or duties which may or
may not arise in the future, but only rights and duties about which there is a present
actual controversy presented by adversarial parties. Commonwealth ex rel.
Watkins v. Winchester Water Works Co., 303 Ky. 420, 197 S.W.2d 771 (Ky.
As the trial court properly found, it did not have jurisdiction over the
advancement issue. Any arguments made by KTC contingent on finding the Casey
Circuit Court did have jurisdiction are moot. Finding no error, we affirm.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward D. Hays
H. Vincent Pennington
Theodore H. Lavit