ORRIS SALISBURY, ET AL. V. EARL HALL, JR.
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : AUGUST 27, 2009
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2007-SC-000886-DG
ORRIS SALISBURY, ET AL .
D
D
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-002217-MR
FLOYD CIRCUIT COURT NO . 03-CI-01308
V.
APPELLEE
EARL HALL, JR.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellants, Emmit Salisbury, Orris Salisbury, Gertrude Boggs, and
Charlotte Salisbury, filed a Complaint in the Floyd Circuit Court contesting the
document admitted to probate as the Last and Will and Testament of Jay
Salisbury on the grounds that it was the product of undue influence exerted by
Appellee, Earl Hall, Jr., and that Jay Salisbury was incompetent to make the
will . The trial court entered summary judgment dismissing and on appeal, the
Court of Appeals affirmed . We granted discretionary review and now affirm the
decision of the Court of Appeals .
Factual and Procedural Background
Jay died on October 21, 2001, at the age of 79 . He had lived in the rural
area of Hunter, Kentucky, for most of his life . In 1944, he was discharged from
the United States Army for being mentally unfit to serve, and was never known
to have had another job . His only known income came from Supplemental
Security Insurance (SSI) . In 2000, Jay was hospitalized twice, once as the
result of a car wreck and again from a fall in his home . Despite his various
health issues, Jay lived alone until his death .
Appellants contend that after having little or no contact with Jay for
several years, Appellee pressured Jay into agreeing to name Appellee the sole
beneficiary and executor of his estate . In return, Appellee would become Jay's
caretaker . Appellants further allege that on October 11, 2000, Appellee took
Jay to an attorney to execute a will in accordance with the agreement. Both
Orris and Emmit Salisbury testified that Appellee never lived up to his part of
the bargain . They described visiting Jay only to find him toothless, foodless,
and often crying that Appellee was not caring for him .
The claims of Charlotte Salisbury and Gertrude Boggs were dismissed
because they failed to comply with an order compelling them to respond to
Appellee's discovery requests. In April 2006, the circuit court granted
summary judgment for Appellee against the remaining claims of Emmitt and
Orris, concluding they had failed to produce evidence that could establish a
genuine issue of fact in support of their claims. Appellants filed a CR 59 .05
motion to alter, amend, or vacate summary judgment, and supplemented the
record with documentation of Jay's mental health army discharge .
Notwithstanding, the circuit court denied the motion . The Court of Appeals
affirmed the dismissal of Gertrude's and Charlotte's claim and the summary
judgment dismissing the claims of Emmit and Orris.
The Dismissal of the Claims of Gertrude Boggs and Charlotte Salisbury
On August 20, 2004, the circuit court entered an order to compel
discovery after Gertrude Boggs and Charlotte Salisbury, repeatedly failed to
respond to discovery requests. Neither Gertrude nor Charlotte responded to
the order and as a result their claims were dismissed on November 18, 2005.
Both Charlotte and Gertrude were in their eighties and in ill health at the
time Appellee's discovery requests were made. I Appellants argue that the
circuit court was aware of this fact and therefore abused its discretion by
enforcing its discovery order so harshly. However, a review of the record shows
that the circuit court gave both Appellants ample opportunities to respond.
Therefore, we find no error on the part of the circuit court in dismissing
Gertrude's and Charlotte's claims . 2 As such, Appellants' request for reversal
on this issue is denied .
The Summary Judgment Dismissing the Claims of Orris and Emmit Salisbury
A. Standard of Review
In ruling on a motion for summary judgment, the trial court must
examine the record to determine if any real or genuine issue of material fact
exists . City of Florence v. Chipman , 38 S .W.3d 387, 390 (Ky. 2001) . Summary
judgment is proper when, as a matter of law, it appears that it would be
1 Gertrude died during the pendency of the case.
2 The record discloses that Charlotte was not related to Jay by blood, but was his
sister-in-law. She was not an heir-at-law of Jay, but her standing to bring suit was
apparently not challenged.
impossible for the non-moving party to produce evidence at trial warranting a
judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc . , 807
S .W.2d 476, 483 (Ky. 1991); CR 56 .03 . The issue of impossibility is viewed in a
practical sense, rather than an absolute one. Perkins v . Hausladen, 828
S.W .2d 652, 654 (Ky. 1992) . Because summary judgments involve no fact
finding, this Court will review the circuit court's decision de novo. Blevins v.
Moran, 12 S.W.3d 698, 700 (Ky. App. 2000) .
B. The Claim of Lack of Testamentary Capacity
Under Kentucky law, a strong presumption exists favoring a testator's
mental capacity to make a will . This presumption can only be rebutted by a
strong showing of incapacity . Bye v. MattinglY, 975 S .W.2d 451, 455 (Ky.
1998) . "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." Id . , (citing American
National Bank 8s Trust Co. v. Penner, 444 S .W .2d 751 (Ky. 1969)) . "The degree
of mental capacity required to make a will is minimal." Bye , 975 S .W.2d at
455-456 (citing Nance v. Veazgy, 312 S.W .2d 350, 354 (Ky . 1958)) .
To validly execute a will, a testator must know the natural objects of his
bounty and his obligations to them, the character and value of his estate, and
must dispose of his estate according to a fixed purpose. Bye , 975 S .W.2d at
455-456; Adams v . Calia, 433 S .W.2d 661, 662-663 (Ky. 1968) ; Waggener v .
General Ass'n of Baptists , 306 S .W .2d 271, 272-273 (Ky . 1957) . Our review of
the record confirms Appellants' failure to assert facts sufficient to raise a
genuine issue of material fact regarding Jay's testamentary capacity.
Appellants' only evidence to support the claim of Jay's mental infirmity was the
1944 Army discharge papers, and the deposition testimony of Orris and
Emmit, in which they offer no more than their own opinion based on limited
observations . Orris testified that he had no personal knowledge of Jay's mental
state at or around the time Jay's will was executed . Emmit testified that he
had only seen Jay once or twice during that time and only for a brief period.
Their evidence indicated nothing to show that Jay lacked knowledge of his
relatives, or his estate . They failed to demonstrate that Jay lacked any of the
mental requisites cited above for making a will. Finally, they offered no
indication that sufficient evidence would be forthcoming from the other
witnesses. In addition, we agree with the Court of Appeals that evidence of
Jay's mental condition at the time he was discharged from the Army in 1944
carries little weight as affirmative evidence of Jay's testamentary capacity in
2000.
Appellants failed to demonstrate that they could produce sufficient
evidence at trial to sustain their burden as to the allegation of testamentary
incapacity . We thus affirm the Court of Appeals decision on this issue.
C. The Claim of Undue Influence
Appellants contend that their interrogatory answers and deposition
testimony presented to the trial court sufficiently established the existence of a
genuine issue of fact regarding the allegation of undue influence . The inability
to make a case of lack of testamentary capacity does not preclude a finding of
undue influence . See Gibson v. Gipson, 426 S.W.2d 927, 928 (Ky. 1968) . One
with diminished mental ability may yet be competent to make a will, but in that
condition he is more susceptible to fraud or undue influence. Id .
Undue influence is ordinarily exerted in a subtle manner, and can rarely
be shown by direct proof. In most instances, its existence can be established
only by examining the facts and circumstances leading up to the execution of
the particular instrument involved. McKinney v. Montgomery , 248 S .W .2d 719,
721 (Ky. 1952) . Experience has taught that certain circumstances are
especially indicative of undue influence, and have come to be recognized as the
"badges" of undue influence . Belcher v. Somerville , 413 S .W.2d 620, 622 (Ky.
1967) . These include the following:
1 . A will unnatural in its provisions ;
2. A physically weak, mentally impaired testator;
3. Participation by the beneficiary in the physical preparation of the
will and possession of the will by the beneficiary after its being
written;
4 . Efforts by the beneficiary to restrict contacts by the testator with
other persons;
5 . A lately developed and comparatively short period of close
relationship between the testator and the principal beneficiary .
Id .
In the year his will was executed, Jay lived alone, had been hospitalized
twice, and suffered from various physical ailments . He had very little income .
Appellants suspected that Appellee took advantage of Jay's situation, and
coerced him to believe that he must name Appellee the sole beneficiary and
executor of his will in order to receive adequate care. Although the evidence is
clear that Jay was in a physically weakened condition due to the infirmities of
age and his recent injuries, Appellants indicated no ability to produce evidence
to substantiate their suspicion .
Emmit and Orris both testified that Appellee supervised their visits with
Jay during the last year of his life. They also state that Jay's will was drafted
by an attorney of Appellee's choosing . The record shows that the will was
drafted by an attorney in Prestonsburg, Kentucky, who appears to have no
other connection with this matter, and from whom no evidence is offered about
who participated in the creation of the will. Emmit and Orris claim that when
Appellee took charge of Jay's personal care, he took control of Jay's SSI check,
although no evidence is suggested to show that the handling of Jay's money
was abused.
Of all the "badges" of undue influence, perhaps the most telling is the
unnatural disposition of the testator's bounty. We have long recognized that a
"gross inequality of distribution between the natural objects of the testator's
bounty" may raise a question of undue influence, but is alone insufficient to
establish it. Bottom v. Bottom , 106 S.W. 216, 218 (Ky. 1907) . The fact that
the will on its face shows an unequal distribution of the estate, or that one
devisee or legatee was given more than another one of equal degree of kinship
does not necessarily constitute an unnatural disposition . See Clark v . Young's
Ex'x, 142 S .W . 1032, 1034 (Ky. 1912) ("It would be a strange law that gave to a
man the power to make a will and dispose of his property as he saw fit, and at
the same time couple with it the limitation that if any inequality appears on the
face of the will this of itself is sufficient to create the presumption of incapacity
or undue influence .") .
Here, the unequal disposition contained in Jay's will is self-evident . One
nephew received the entire estate,3 to the apparent exclusion of at least one
sister (Gertrude), one nephew (Emmit), and Orris, whose relationship to Jay is
uncertain . Orris, uncertain about his own paternity, testified that he was
either a half-brother to Jay or a nephew. He was raised to believe that Jay was
his uncle, but learned during this litigation that perhaps Jay was really his
half-brother . The record is mute as to whether there are others that qualify as
Jay's heirs-at-law. No family tree was provided to indentify the natural objects
of Jay's bounty.
Appellants' evidence showed that Appellee lived about one-hundred feet
from Jay. Up until the last year of Jay's life, he was looked after by his
brother, Bert. Bert's death left Jay without a personal attendant, until Appellee
undertook that duty. Jay's apparent need for a caretaker and Appellee's close
proximity simultaneously demonstrates his vulnerability to undue coercion
while it also provides a rational explanation for the unequal treatment .
3 The probate documents filed by Appellee list the estate as consisting of a house and
lot valued at $15,000 and personal property valued at $25,000.
However, viewing the circumstance most favorably to Appellants raises merely
a suspicion that the will may be the product of undue influence.
No single badge of undue influence is conclusive . Instead, their
cumulative effect must be considered . The totality of the circumstances here,
viewed most favorably toward the Appellants, establishes no likely possibility
that sufficient evidence would be forthcoming to warrant submission of the
case to a jury.
We therefore conclude that summary judgment was properly granted and
affirm the decision of the Court of Appeals .
All sitting. All concur.
COUNSEL FOR APPELLANT:
John Harlan Callis, III
Suite 202
202 Irene Street
P O Box 186
Prestonsburg, Kentucky 41653
COUNSEL FOR APPELLEE:
Dwight Stacy Marshall
Vanover, Hall and Bartley, P.S.C.
310 South Lake Drive
P O Box 1378
Prestonsburg, Kentucky 41653
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