BOONE v. HOSKINS IV (2020)

OPINION

This appeal challenges a summary judgment upholding the validity of a will and codicil against appellant Elizabeth Boone's claims that those instruments were the product of incapacity and undue influence. Discerning no error in the analysis or decision of the Fayette Circuit Court, we affirm.

Sometime in February 2012, Mary McDowell Van Meter Boone ¹ approached a neighbor and family friend, attorney D. Barry Stilz, about drafting a new will for her. Mr. Stilz indicated he would be happy to assist her and subsequently met with Mary McDowell at his office to discuss the contents of the will. In his deposition testimony, Mr. Stilz stated that it was his recollection that Mary McDowell's daughter, appellee Alyce Boone Hoskins, had driven her to the meeting but he was sure that only he and Mary McDowell were present in his office at the time the terms of the will were discussed. Mr. Stilz testified that shortly after that meeting he provided Mary McDowell with a draft for her review and she made some small changes. Mr. Stilz also testified that no one other than Mary McDowell contacted him about the contents of the draft or any proposed changes.

On May 22, 2012, Mary McDowell, who was 81 years old at the time, met with Dr. Miranda Binion to establish a primary care physician in case an emergency should arise and she might need medical care. On a medical records form concerning that visit, Dr. Binion noted: “Pt. has no medical problems. Has not seen a doctor in 52 years. Pt. is not interested in having physical exams, preventative screenings, or fasting lab work. She just needed to have a PCP for emergencies.” In the comments section of the form under the heading “Physical exam,” Dr. Binion noted that Mary McDowell was “alert and oriented.” Nothing in Dr. Binion's notes indicates that Mary McDowell was having difficulty speaking or conversing.

Mary McDowell executed the will which is the subject of this appeal on June 22, 2012, one month after the visit with Dr. Binion. Although Alyce again drove her mother Mary McDowell to attorney Stilz's office, only Mr. Stilz and Mary McDowell were present in his office when they had their final discussion of the will's terms. Alyce testified she was seated in the reception area and Mr. Stilz confirmed that only he and Mary McDowell were present in his office where the will was finally discussed and executed in front of witnesses. This 2012 will replaced Mary McDowell's 1981 will which had basically divided her estate equally among her four children. The 2012 will differed from the 1981 will in several important respects: 1) the will provided that certain personal items including jewelry, furniture, household goods, and personal effects would be distributed in accord with a handwritten memorandum prepared and signed by Mary McDowell; 2) if that memorandum could not be found and properly identified, all of the aforementioned property would be distributed as part of her residuary estate; 3) Mary McDowell's residence was specifically bequeathed to two of her granddaughters, appellees Mary McDowell Hoskins Squire and Alyce Chapin Hoskins (Alyce's daughters); and 4) her residuary estate was to be divided in four equal shares to her three surviving children Alyce, Elizabeth, and Alex (Samuel A.B. Boone), and to the children of her deceased son Hilary J. Boone, III. Importantly for purposes of this appeal, the will included an in terrorem clause specifically providing that should any beneficiary contest the probate, validity, or distributive provisions of the will, all benefits for that beneficiary would be revoked and the estate distributed as if that beneficiary had predeceased the testatrix without issue. Finally, Alyce was appointed executrix. In the event that Alyce was unable or unwilling to serve, the will appointed Mary McDowell's granddaughters Mary McDowell Hoskins Squire and Alyce Chapin Hoskins to serve as co-executors.

Mary McDowell again approached Mr. Stilz in June 2013 about making changes to the 2012 will. Mr. Stilz testified that, as he had done with the draft of the 2012 will, he stopped by Mary McDowell's residence on his way home and dropped off a draft of the codicil he had prepared from a list and inventory sheet Mary McDowell had provided to him. The codicil replaced the entirety of Item III of the 2012 will, the provision referring to a written memorandum of personal bequests, with a list of specific bequests of personal and household effects and cash to various family members and friends. Although Elizabeth's name did not appear in the list of specific bequests, she remained a residual beneficiary under the will. On August 2, 2013, Mary McDowell drove herself to Mr. Stilz's office and executed the codicil. Mr. Stilz specifically recalled that Mary McDowell had stopped by his office on her way to or from a tennis match.

In April 2014, Mary McDowell executed an affidavit in which she characterized her relationship with her daughter Elizabeth as non-existent despite the fact that they lived in close proximity to one another. In addition, Mary McDowell averred it was only upon learning that she was suffering from a terminal disease that Elizabeth attempted to visit her. Mary McDowell stated that she was fearful of Elizabeth due to her prior erratic behavior and lack of judgment which included using a pipe to break a window to gain access to Mary McDowell's home. For these reasons, Mary McDowell stated that she had instructed Alyce and her son Alex to prevent Elizabeth from entering her home.

Mary McDowell died on April 3, 2015, and the Fayette District Court subsequently granted Alyce's petition to probate the will and appoint her as executrix. In July 2015, Elizabeth instituted an action in Fayette Circuit Court seeking a declaration that the will and codicil admitted to probate were “void in their entirety by virtue of having been the product of lack of testamentary capacity and/or undue influence.” The action also sought an accounting for Alyce's actions as attorney-in-fact for Mary McDowell prior to her death and the return of certain personal property to the estate. Elizabeth filed a separate motion in Fayette District Court seeking Alyce's removal as executrix. At the district court hearing on her motion, Elizabeth failed to produce any evidence to corroborate her accusations against Alyce and the district court allowed Elizabeth to withdraw her motion.

Elizabeth took no substantive steps in the circuit court action until Alyce filed a motion for summary judgment in April 2016. At a hearing conducted on that motion, Elizabeth insisted that although she did not have evidence at the time of the hearing to support her allegations, discovery would lead to evidence in support of her claims. The circuit court denied the first summary judgment motion and allowed discovery to proceed. However, in the order granting Alyce's second motion for summary judgment, the circuit court noted that in the two and one-half years since the hearing on the first summary judgment motion, Elizabeth conducted minimal discovery and that most of the effort to move the case to conclusion had been taken by Alyce. Citing the strong presumption that Mary McDowell possessed testamentary capacity at the time she executed the will and the codicil, the circuit court concluded that Elizabeth had failed to satisfy her burden of proving her claims of incapacity and/or undue influence at those times. This appeal follows the denial of Elizabeth's subsequent motion to alter, amend, or vacate the summary judgment.

Elizabeth advances several arguments in support of her contention that summary judgment was improvidently granted: 1) that the circuit court applied the wrong standard to her claims; 2) that genuine issues of material fact preclude the summary disposition of her claims of lack of testamentary capacity and undue influence; 3) that the circuit court improperly entered summary judgment on the no-contest clauses; and 4) that her claims for breach of fiduciary duty, unjust enrichment, and an accounting present genuine issues of material fact. We commence our discussion of these contentions by reiterating the well-established standard under which appellate courts review the entry of summary judgment:

The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985). Consequently, summary judgment must be granted “[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor ․” Huddleston v. Hughes, Ky. App., 843 S.W.2d 901, 903 (1992), citing Steelvest, supra (citations omitted).

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Applying these criteria to the issues advanced in this appeal, we discern no error in the well-reasoned opinion of the circuit court.

Elizabeth insists that the circuit court misapplied this well-established standard by “wholly adopt[ing] the facts as set forth by Alyce and fail[ing] to give any inference or favorable construction to the facts put forth by Elizabeth.” However, the primary fallacy in that argument is that Elizabeth failed to establish facts concerning Mary McDowell's lack of capacity at the time she executed the will and codicil or facts demonstrating Alyce exerted any undue influence over her mother. Elizabeth's beliefs or suppositions concerning her mother's capacity or Alyce's influence over her fall woefully short of meeting the standards set out in Scifres.

Contrary to Elizabeth's contention that “it is not her burden to establish her claims at this stage,” CR 56.02 provides that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” And, pertinent to Elizabeth's assertion, the Supreme Court of Kentucky has clarified that “[t]he party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001) (emphasis added). In addition, a mere “hope or bare belief ․ that something will ‘turn up,’ cannot be made [the] basis for showing that a genuine issue as to a material fact exists.” Benningfield v. Pettit Environmental Inc., 183 S.W.3d 567, 573 (Ky. App. 2005) (quoting Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968)).

To properly evaluate whether Elizabeth's proof sufficiently countered the motion for summary judgment by demonstrating the existence of genuine issues of material fact and by showing a reasonable likelihood that she could prevail at trial, we must initially examine the elements requisite to establishing her claims. As did the circuit court, we turn to Bye v. Mattingly, 975 S.W.2d 451 (Ky. 1998), the seminal case on incapacity and undue influence:

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.

․

The degree of mental capacity required to make a will is minimal. The 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.

Id. at 455-56 (citations omitted).

In unanimously adopting the Bye analysis of testamentary capacity, the Supreme Court of Kentucky very recently set out in detail the Bye Court's analysis concerning undue influence. Because an understanding of the Bye analyses of capacity and undue influence is critical to resolving the claims advanced in this appeal, we quote extensively from Getty v. Getty, 581 S.W.3d 548 (Ky. 2019):

Similar to a lack of testamentary capacity nullifying a will, undue influence over the testator in the testator's execution of a will invalidates that will. As before, we endorse former Chief Justice Stephens's articulation of Kentucky law regarding undue influence:

Undue influence is a level of persuasion which 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 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 the law. Second, the influence must be of a level that vitiates the testator's own free will so that the testator is disposing of her property in a manner that she would otherwise refuse to do. The essence of this inquiry is whether the testator is exercising her own judgment.

In addition to demonstrating that undue influence was exercised upon the testator, a contestant must also show influence prior to or during the execution of the will. Undue influence exercised after the execution of the will has no bearing whatsoever upon whether the testator disposed of her property according to her own wishes.

The influence must operate upon the testator at the execution of the will. If the influence did not affect the testator, then such conduct is irrelevant. However, even if the influence occurred many years prior to the execution of the will, but operates upon the testator at the time of execution, it is improper and will render the will null and void.

To determine whether a will reflects the wishes of the testator, the court must examine the indicia or badges of undue influence. 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 the 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.

․

When a contestant seeks to claim that undue influence was employed upon a testator, the burden is upon the contestant to demonstrate the existence and effect of the influence. Merely demonstrating that the opportunity to exert such influence [existed] is not sufficient to sustain the burden of proof. When undue influence and a mentally impaired testator are both alleged and the mental impairment of the testator is proven, the level of undue influence which must be shown is less than would normally be required since the testator is in a weakened state.

Id. at 555-56 (emphases added).

Nothing in Elizabeth's evidence demonstrates her mother lacked testamentary capacity at the time she executed the will and codicil. Neither did she offer any proof that Alyce exerted undue influence over her mother concerning the execution of the will and/or codicil. To be sure, Mary McDowell was aging and suffered from the effects of cancer. Nevertheless, in support of their summary judgment motion, appellees offered unusually strong evidence that Mary McDowell possessed the capacity and strength of will to dispose of her substantial estate.

Dr. Binion, who conducted a physical exam one month prior to the execution of the 2012 will, found Mary McDowell to be “alert and oriented.” In addition, on a medical records form from a May 13, 2013 “preventative exam,” Dr. Binion noted:

History of Present Illness:

This 82 year old female presents with:

1. Preventative Exam

Negative for: breast lump(s) and breast pain. Positive for: breast discharge. Pertinent negatives include anxiety, depression, and urinary incontinence.

Pt. reports difficulty finding words. However, still very independent. Shops, balances checkbook.

Pt. reports a draining growing breast lesion has been present for about 6-7 months. She does not wish to have any diagnostic studies. She refuses to have hospice or wound care involved. She wishes to be DNR.

In her deposition testimony, Dr. Binion expanded upon her 2013 findings concerning Mary McDowell's cognitive abilities:

It really wasn't too different than – if any, than the first time I met her. She seemed still put together well; she answered questions appropriately. There was not a time where I felt like she was confused. She just seemed to know what she wanted and what she preferred in terms of her treatment.

Dr. Binion described Mary McDowell as “very firm” in her decisions about treatment for her condition. Explaining her reason for indicating “memory impairment” on the form, Dr. Binion stated:

Well, I – I put that in there due to her disclosing word finding difficulties. That was pretty much the reason I put that in there.

Acknowledging Dr. Binion's view of Mary McDowell's cognitive abilities during the period surrounding the execution of the will and codicil, we nevertheless, for purposes of our review, resolve any doubts as to Mary McDowell's mental state in Elizabeth's favor. First, Elizabeth offered an affidavit from Mary McDowell's mailman in which he stated that in the fall of 2012, she mistook him for the refrigerator repairman. We also accept as true the following assessment by Dr. Scott Haas, a board-certified forensic psychiatric physician who did not examine Mary McDowell but rather relied upon records provided to him for the purpose of providing his expert opinion as to her mental state:

Based upon my review of the records provided thus far and in accordance with the above discussion, I can offer the following preliminary opinions:

1. It is my opinion, with reasonable medical certainty, that Mary McDowell Van Meter Boone developed clinically significant impairment in cognitive functioning at least by the Fall of 2012.

2. It is my opinion, with reasonable medical certainty, that Mary McDowell Van Meter Boone submitted legal documents related to her estate after the time at which her cognitive impairments were known to exist.

3. It is my opinion, with reasonable medical certainty, that Mary McDowell Van Meter Boone was suffering from impairments that would have interfered with her capacity to make informed decisions or remain free from undue influence.

We accept as true Elizabeth's assertion that her 81-year-old mother occasionally lost track of the score in tennis matches to which she drove herself three times a week. We accept the fact that at some unknown date Mary McDowell hit a pedestrian (without apparent injury) as she was backing her car out of her driveway. However, none of this evidence, alone or in combination, is sufficient to demonstrate that Mary McDowell lacked testamentary capacity on June 22, 2012, or August 2, 2013.

In addition, we have reviewed Elizabeth's at times contradictory deposition testimony as to her relationship with her mother; as to her mother's ability to speak and converse; and her own ability to visit her mother. In our opinion, nothing in Elizabeth's testimony calls into question Mary McDowell's competency to dispose of her estate to the natural objects of her bounty on the dates she executed her will and codicil.

Returning to the Bye standards for evaluating claims of incapacity and undue influence, nothing in Elizabeth's proof comes close to establishing those criteria. Nothing in Elizabeth's proof demonstrates a lack of capacity at the time the will and codicil were executed. Nor is there evidence in this record from which we can conclude that Mary McDowell, at the time she executed the instruments in issue here, (1) did not know the natural objects of her bounty; (2) did not know her obligations to them; (3) did not know the character and value of her estate; or (4) failed to dispose of her estate according to her own fixed purpose. Bye, supra. As Chief Justice Stephens eloquently explained in Bye, “[m]erely 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.” Bye, 975 S.W.2d at 456 (citing Ward v. Norton, 385 S.W.2d 193 (Ky. 1964)). We therefore find no error in the summary disposition of Elizabeth's claim that Mary McDowell lacked testamentary capacity.

Neither do we find evidence of undue influence sufficient to preclude the entry of summary judgment. The previously cited language in Getty makes clear that demonstrating mere opportunity to exert undue influence is insufficient to sustain one's burden of proving undue influence. Getty, 581 S.W.3d at 555. Although she asserts that Alyce prevented her from visiting her mother, Elizabeth also testified as follows:

Q. Very well. How often during 2012 and 2013 did you see your mother and actually speak with her?

A. Whenever I wanted to.

Q. You were never –

A. Never.

Q. – barred from seeing your mother?

A. Never.

Only the 2012-2013 timeframe has relevance to this appeal because “[i]n addition to demonstrating that undue influence was exercised upon the testator, a contestant must also show influence prior to or during the execution of the will.” Id. Thus, based upon her own testimony, during the relevant time period, Elizabeth was free to visit her mother any time she wished. In addition, Getty emphasizes that not all influence is undue. Only influence which is the product of threats or coercion is prohibited by law. Elizabeth has failed to identify occasions or actions indicating that Alyce in any way intimidated, coerced, or threatened Mary McDowell.

Elizabeth quite simply failed to offer evidence of any of the required “badges” of undue influence required to defeat the summary judgment motion. Other than Elizabeth's unsupported assertions, we find no evidence that the will and codicil were unnatural in their provisions. Elizabeth was not entirely cut out of her mother's estate; she simply did not receive the personalty which she believed her mother had previously promised her and to which she believed she was entitled. As the circuit court noted, it is “perfectly normal for a person to change his mind or even to do at a later date something contrary to his earlier expressed intention.” New v. Creamer, 275 S.W.2d 918, 920 (Ky. 1955). To do so does not show lack of mental capacity. Id. Abundant and longstanding Kentucky caselaw makes clear that nothing precludes a testatrix from changing her mind about the distribution of her estate; in fact, her right to do so will be zealously guarded.

Nor has Elizabeth established Alyce's participation in the preparation of the will or possession of the will after it was reduced to writing. Mr. Stilz testified that Mary McDowell alone discussed with him the contents of the will and codicil; that he delivered drafts of those instruments to Mary McDowell and no one else; that no one other than Mary McDowell contacted him about the contents of the will; and that no one other than Mary McDowell was present during the execution of those instruments. Elizabeth seeks to undermine Mr. Stilz's credibility on these points by citing the existence of an undated letter written by Alyce's husband outlining the specific bequests which in large part became the bequests set out in the codicil. We address this contention only by noting that Elizabeth had every opportunity to cross-examine Mr. Stilz about this letter and chose not to do so. Neither did she attempt to offer it in support of her claim until after summary judgment had been entered. Regardless, absolutely nothing in the letter suggests undue influence or interference in Mary McDowell's decisions regarding her estate. It is merely a statement by Alyce's husband as to specific devises Mary McDowell had informed him she wished to incorporate into the codicil. As was the case with other aspects of her will, it was subject to discussion and questioning by Mr. Stilz in his private meetings with Mary McDowell to ensure that it represented her wishes.

Further, there is nothing which can be construed as remotely unnatural in Mary McDowell's recognition of the objects of her bounty and the resulting distribution of her estate. Elizabeth herself testified that her relationship with her mother had always been “difficult” and that her mother resented the attention she showed her father during his final illness. She acknowledged that Alyce had been in charge of caring for their mother. Mr. Stilz testified that he had frequently seen Mary McDowell in the company of Alyce's daughters at the country club and their cars were frequently parked at her home. Thus, other that Elizabeth's contention that she didn't receive bequests of items she expected to inherit, there is no evidence of an unnatural disposition of Mary McDowell's estate.

Finally, the circuit court did not err in refusing to require an accounting or in enforcing the no-contest clauses in the will and codicil. Given the fact that Elizabeth offered absolutely no evidence to support her subjective assertions that Alyce had breached her fiduciary duties or unjustly enriched herself at the expense of the other beneficiaries of Mary McDowell's estate, we perceive no basis upon which the circuit court could have concluded other than it did. Elizabeth's assertion that she is entitled to an accounting because Alyce failed in her reporting requirements under KRS ² 387.100(1) appears to be based solely upon Elizabeth's perception that Alyce must have written the will herself. As such, Elizabeth's claim is clearly insufficient to trigger an accounting.

Neither did Elizabeth offer evidence that Alyce failed to distribute the estate in accordance with the terms set out in the will and codicil. Again, Elizabeth's subjective beliefs concerning validity of the will and codicil do not constitute evidence creating genuine issues as to whether Alyce breached her fiduciary duties in order to unjustly enrich herself.

Regarding the no-contest clauses in the will and codicil, it was clearly Mary McDowell's intent that any beneficiary “who contests the probate, validity, or distributive provisions of the will,” or who institutes a proceeding to do so, loses all benefits provided for that beneficiary under the will. This Court in Strunk v. Lawson, 447 S.W.3d 641 (Ky. App. 2013), explained the rationale for including such provisions in wills:

The reasons for such a clause include the deceased's attempt to avoid costly legal expenses to the estate or trust, antagonism between beneficiaries, and the public exposure of private matters. Although enforceable in Kentucky, no-contest provisions are strictly construed and are not extended beyond their express terms.

Id. at 649 (quoting Commonwealth Bank & Trust Co. v. Young, 361 S.W.3d 344, 352 (Ky. App. 2012)).

Given Elizabeth's testimony concerning the acrimony and litigation surrounding her father's estate and Mr. Stilz's testimony that Mary McDowell wanted to avoid the “circus” that had ensued, it seems clear that to fully effectuate her testamentary wishes the in terrorem clause must be enforced. Because it cannot be seriously disputed that Elizabeth violated the no-contest clauses by challenging the validity and distributive provisions of the will and codicil, the circuit court did not err in enforcing those provisions.

In sum, Elizabeth has failed to demonstrate that genuine issues of material fact preclude the entry of summary judgment or that there is a reasonable possibility she could prevail at trial. Accordingly, the judgment of the Fayette Circuit Court is in all respects affirmed.

FOOTNOTES

1.   For purposes of clarity, we will hereinafter refer to the principal parties to this dispute using their first names.

2.   Kentucky Revised Statute.

MAZE, JUDGE:

ALL CONCUR.