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Court of Appeals of Kentucky.


NO. 2010–CA–000046–MR

Decided: March 23, 2012

BEFORE:  CLAYTON, STUMBO AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Steven R. Dowell Carol L. Risk Covington, Kentucky BRIEF FOR APPELLEE:  Michael T. McKinney Burlington, Kentucky



The Estate of Donald W. Dawson, Derek R. Durbin, Administrator;  Estate of Delma D. Usher, Susan Campbell, Executrix;  and Susan Campbell (collectively, “Delma”) appeal from a judgment of the Campbell Circuit Court following a jury verdict finding that Donald's execution of his will was procured by undue influence.   For the reasons stated, we affirm.

On January 10, 2000, Donald Dawson signed a document, which was purportedly his last will and testament.   On the same day, Donald executed a power-of-attorney appointing Delma Usher, his sister, and Susan Campbell, Delma's daughter, as his attorneys-in-fact.   At the time, Donald was estranged from his wife, Louise, and his only child, Donna Lou Dawson.   Following Donald and Louise's separation, Donald moved into the residence of his sister, Delma.   Donald's wife died while the couple remained estranged.

After Donald's death, Delma filed a petition to probate Donald's purported will, but Donna filed a will contest action in the circuit court.   Donna's petition alleged that Donald's purported will was procured by undue influence and, therefore, invalid.   Subsequently, a jury trial was held where numerous witnesses were called to testify about the circumstances around the execution of the will.

According to testimony at trial, Donald was a truck driver who had a long marriage with Louise.   Louise was a homemaker and handled the finances for the family because Donald was frequently away.   During his work career, Donald was involved in multiple accidents in which he was seriously injured.   Particularly, he sustained a fractured skull as a result of an accident in 1985.   Testimony was given that Donald's head injury caused permanent damage, which affected his mood and made him susceptible to the control of others.   Additionally, Donald suffered from Parkinson's disease from the mid–1990s until his death in 2008.

After a long marriage, Donald vacated the marital residence and moved into Delma's residence.   Donald segregated the couple's joint checking account and the parties' Social Security payments.   There was testimony that Delma was jealous of Louise and Donna and that Delma exercised a domineering personality over Donald's life to exclude Louise and Donna.   Donna testified that Delma told Donald that Donna did not love him and did not send him holiday gifts.   Donna testified that she purchased gifts for her father but Delma would not give the gifts to Donald and returned the gifts.

Donna further testified that Delma would accuse her of disrespecting her father when Donna came to visit him and kept Donna away from her father.   Testimony was also given that Delma prevented John, Donald's brother, from visiting with Donald from 1996 until Donald's death in 2008.   The testimony established that Delma was Donald's primary caretaker, and that Donald was completely reliant on Delma for his personal needs as his health deteriorated.

Additionally, there was testimony that Delma handled all of Donald's business and financial affairs.   John testified that, when he wished to purchase Donald's inherited share of the family farm, he was forced to give Delma property in order to persuade Donald to sell his share of the farm.   John testified that Delma drove Donald to the closing and required that Donald receive a cash payment.   He then testified that Delma placed the cash payment into a brown paper bag, tucked the bag under her arm, and then left with Donald.   Delma testified that she kept Donald's money in a safe where only she had the combination.

Robert Bathalter, the attorney who prepared Donald's will, testified that he did not know why Donald's will did not mention Donald's wife and daughter even though both were alive at the time the will was drafted.   Bathalter testified that he did not remember who provided the information to draft the will but that his appointment book only contained a misspelling of Delma's name.   He further testified that Delma drove Donald to the signing of Donald's will, and that Delma accompanied Donald when the will was signed and witnessed.

At the conclusion of Donna's case-in-chief, Delma moved for a directed verdict dismissing Donna's claim that Donald lacked the testamentary capacity to execute his will and Donna's claim that Donald's purported will was procured by undue influence.   The trial court granted Delma's motion on the lack of testamentary capacity claim but denied her motion on the undue influence claim.   After further evidence was presented and the case was closed, the jury returned a verdict finding that Donald's execution of the purported will was procured by undue influence.   Based on the jury's finding, the trial court issued a judgment invalidating Donald's purported will.   This appeal follows.

Delma contends that the trial court erred by excluding the testimony of Dr. Mina Kalfas, Donald's treating physician, who would impeach the evidence admitted by Donna regarding Donald's head injuries.

We review a trial court's evidentiary rulings, including the exclusion of witnesses, for abuse of discretion.  Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky.2009).   The test for abuse of discretion is to decide whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  Price v. Garcia, 291 S.W.3d 728, 734 (Ky.App.2009).

The trial court ruled that Dr. Kalfas treated Donald four years after the execution of the will and, thus, had no legally relevant testimony to provide regarding Donald's mental capacity at the time of the execution of the will.   Delma argues that she should have been permitted to impeach Donna's evidence that Donald's previous accidents made him more susceptible to undue influence.

Even assuming that the trial court erred, Delma has failed to cite to the record where Dr. Kalfas's testimony can be found.   In fact, Delma has not stated that she properly preserved the exclusion of Dr. Kalfas's testimony for review by admitting the testimony by avowal.   A party must offer an avowel by a witness in order to permit appellate review of the exclusion of the evidence.   Bowman ex rel. Bowman v. Perkins, 135 S.W.3d 399, 403 (Ky.2004).   Absent an avowal, we cannot determine if Dr. Kalfas's testimony would have been relevant.

Delma contends that the trial court erred by denying her motion for directed verdict because Donna could not legally establish that Donald's will was procured by undue influence.   She further contends that the trial court's finding that Donald possessed the testamentary capacity to execute his will necessarily requires a finding that Donald's will was not the product of undue influence.

Delma's argument that the trial court's finding that Donna failed to prove that Donald lacked the mental capacity to execute a will required a finding that Donald's will was not procured by undue influence is incorrect.   The inability to establish a case for lack of testamentary capacity does not preclude a finding of undue influence.  Gibson v. Gipson, 426 S.W.2d 927, 928 (Ky.1968).   A mentally diminished person may still possess the capacity to execute a will but may have his or her intent overborne by the undue influence of another person.  Id. Therefore, the dismissal of Donna's lack of testamentary capacity claim did not entitle Delma to a directed verdict on the issue of undue influence regarding Donald's will.

Delma contends that the trial court erred by denying her directed verdict because there was insufficient evidence to prove undue influence.   Delma argues that the evidence presented at trial demonstrated that she was caring for Donald after his other family members abandoned him.   Delma points to her testimony that she did not know why Donald was meeting with Bathalter when she drove him to his attorney's office the day Donald executed his will.   She further argues that there was no evidence that the disposition of Donald's property by will was grossly unreasonable given his estranged relationship with Donna and Louise.

When reviewing the denial of a motion for directed verdict, an appellate court must accept all evidence that favors the prevailing party as true.  Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 19, 25 (Ky.2008).   A reviewing court is “not at liberty to assess the credibility of witnesses or determine what weight is to be given the evidence.”  Id. An appellate court can only reverse if the verdict was so palpably or flagrantly against the evidence to invalidate the verdict.  Id. “While it is the jury's province to weigh evidence, the court will direct a verdict where there is no evidence of probative value to support the opposite result and the jury may not be permitted to reach a verdict based on mere speculation or conjecture.”  Gibbs v. Wickersham, 133 S.W.3d 494, 496 (Ky.App.2004).

The central concept of an undue influence claim is that the testator, prior to and during the execution of the will, was so inappropriately influenced that he no longer possessed the free will to dispose of his property as only he desired.  Rothwell v. Singleton, 257 S.W.3d 121, 124–25 (Ky.App.2008).   Because direct proof of undue influence is generally unavailable, courts are required to examine the “badges” of undue influence.  Id. at 125.   The badges include the following:

․ 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.

Bye v. Mattingly, 975 S.W.2d 451, 457 (Ky.1998).

Additionally, an unequal or unnatural disposition of the testator's property as provided under the will when coupled with slight evidence of the exercise of undue influence creates a factual basis sufficient to submit to a jury.   Burke v. Burke, 801 S.W.2d 691, 693 (Ky.App.1990).   Thus, “the law reverses itself somewhat to lower the contestant's burden of proof when allegations of undue influence are coupled with an unequal or unnatural disposition․”  Id.

In Bye, our Supreme Court stated that courts should look for the badges of undue influence.  Id. at 457.   In this case, there was evidence that Donald had a diminished mental capacity resulting from a serious head injury and Parkinson's disease.   The testimony revealed that Donald was dependant on Delma for his personal care, transportation, and business affairs.   There was testimony that Delma created hostilities between Donald and Louise and Donna which prevented them from having a relationship.   There was testimony that Delma was with Donald at all times when he executed his will and that Delma possessed Donald's will in her safe where only she had immediate access.   Accordingly, many of the badges outlined in Bye exist.

While Delma disagrees with the veracity of the testimony of Donna and her witnesses, we must accept the evidence that favors Donna as true in determining whether Delma was entitled to a directed verdict.  Childers Oil Co., Inc., 256 S.W.3d at 25.   Under this standard, it was not unreasonable for the jury to find that Donald's purported will was the product of undue influence by Delma and should be invalidated.   Having evidence of Donald's reduced mental capacity and Delma's complete control over and isolation of Donald, the jury was presented with sufficient facts to find that Donald was so inappropriately influenced that he no longer possessed the free will to dispose of his property as only he desired.

For the foregoing reasons, the Campbell Circuit Court's judgment following a jury verdict is affirmed.