581 S.W.3d 548 (Ky. 2019), 2018-SC-000111-DG, Getty v. Getty

• Docket Nº: 2018-SC-000111-DG
• Citation: 581 S.W.3d 548
• Opinion Judge: MINTON, CHIEF JUSTICE
• Party Name: Richard A. GETTY, Richard A. Getty, as Trustee and Beneficiary of the March 22, 2004 Richard J. Getty Living Trust, Richard A. Getty, as Personal Representative, Trustee and Beneficiary of the March 22, 2004 Last Will and Testament of Richard J. Getty, Richard A. Getty, as Beneficiary of the Estate of Richard J. Getty, Richard A. Getty, as ...
• Attorney: COUNSEL FOR APPELLANTS: John W. Bilby, Louisville, William M. Lear, Jr., Anthony Joseph Phelps, Lexington, Stoll Keenon Ogden, PLLC. COUNSEL FOR APPELLEES: Gregory Jackson, Mark L. Moseley, Erin Celeste Sammons IZZO, Leslie Patterson Vose, Lexington, Landrum & Shouse, LLP.
• Judge Panel: Minton, C.J.; Buckingham, Hughes, Keller, Lambert, and Wright, JJ., sitting. VanMeter, J., not sitting. Minton, C.J.; Buckingham, Hughes, Keller and Lambert, JJ., concur. Wright, J., concurs by separate opinion. WRIGHT, J., CONCURRING:
• Case Date: August 29, 2019
• Court: Supreme Court of Kentucky

Page 548

581 S.W.3d 548 (Ky. 2019)

Richard A. GETTY, Richard A. Getty, as Trustee and Beneficiary of the March 22, 2004 Richard J. Getty Living Trust, Richard A. Getty, as Personal Representative, Trustee and Beneficiary of the March 22, 2004 Last Will and Testament of Richard J. Getty, Richard A. Getty, as Beneficiary of the Estate of Richard J. Getty, Richard A. Getty, as Personal Representative of the Estate of Richard J. Getty, Sesamie Bradshaw, Sesamie Bradshaw, as Beneficiary of the March 22, 2004 Richard J. Getty Living Trust, Sesamie Bradshaw, as Beneficiary of the March 22, 2004 Last Will and Testament of Richard J. Getty, Errol Cooper, as Trustee of the March 22, 2004 Richard J. Getty Living Trust and Errol Cooper, as Personal Representative and Trustee of the March 22, 2004 Last Will and Testament of Richard J. Getty, Appellants

v.

Brenda Sue Bridges GETTY, Brenda Sue Bridges Getty, as Trustee and Beneficiary of the March 22, 2004 Richard J. Getty Living Trust, Including as Amended on October 24, 2008, Brenda Sue Bridges Getty, as Personal Representative, Trustee and Beneficiary of the March 22, 2004 Last Will and Testament of Richard. J. Getty, Brenda Sue Bridges Getty, as Executrix and Beneficiary Under the October 27, 2008 Last Will and Testament of Richard J. Getty, Brenda Sue Bridges Getty, as Grantee Under the October 27, 2008 Deed Turst Transaction, Brenda Sue Bridges Getty, as Grantee of the October 27, 2008 Grant Deed, Brenda Sue Bridges Getty, as Attorney-In-Fact of Richard J. Getty Under the February 23, 2004 Power of Attorney and Under the October 24, 2008 General Durable Power of Attorney, Carolyn Carroway, Carolyn Carroway, as Trustee of the October 27, 2008 Deed Trust, Joseph Mayer, as Trustee of the March 22, 2004 Richard J. Getty Living Rust as Amended on October 27, 2008, Jospeh as Executor of the October 27, 2008 Last Will and Testament of Richard J. Getty, Joseph Mayer, as Attorney-In-Fact of Richard J. Getty Under the Ocotber 24, 2008 General Durable Power of Attorney and Kevan Morgan, Appellees

No. 2018-SC-000111-DG

Supreme Court of Kentucky

August 29, 2019

Page 549

[Copyrighted Material Omitted]

Page 550

[Copyrighted Material Omitted]

Page 551

[Copyrighted Material Omitted]

Page 552

ON REVIEW FROM COURT OF APPEALS, CASE NOS. 2014-CA-000686, 2014-CA-000693, 2014-CA-000711, AND 2014-CA-0764, BOURBON CIRCUIT COURT NOS. 09-CI-00476 AND 10-CI-00424

COUNSEL FOR APPELLANTS: John W. Bilby, Louisville, William M. Lear, Jr., Anthony Joseph Phelps, Lexington, Stoll Keenon Ogden, PLLC.

COUNSEL FOR APPELLEES: Gregory Jackson, Mark L. Moseley, Erin Celeste Sammons IZZO, Leslie Patterson Vose, Lexington, Landrum & Shouse, LLP.

OPINION

MINTON, CHIEF JUSTICE

A circuit court jury rendered a verdict in favor of the contestants in this will-contest case, but the Court of Appeals reversed, in part, the resulting judgment because the appellate panel found the contestants’ evidence at trial insufficient to support the jury’s verdict. On discretionary review, we reverse the opinion of the Court of Appeals and reinstate the jury’s verdict on the will-contest issues because we hold that the Court of Appeals erred when it failed to apply the appropriate standard of appellate review of the trial court’s denial of the will-proponent’s directed-verdict motion. We otherwise affirm the opinion of the Court of Appeals on other issues raised, and we remand this case to the Court of Appeals to resolve the remaining issues raised on appeal but not addressed in its opinion.

I. BACKGROUND.

Richard J. Getty ("Dick") and Sue Getty married in 1983, and Sue became stepmother to Dick’s adult biological children, Richard A. Getty ("Rich") and Yolanda Richardson. Yolanda, who predeceased Dick, was the mother of Sesamie Bradshaw.¹

In 2004, Dick executed a will and a living trust agreement ("2004 Estate Plan"). The gist of the 2004 Estate Plan divided Dick’s estate evenly among Sue, Rich, and Yolanda in one-third shares.

In late October 2008, Dick executed another will and some deeds, which rearranged ownership in certain real property (collectively the "2008 Estate Plan"), the validity of all of which is disputed in this case. Under the 2008 Estate Plan, Sue inherited by will or otherwise succeeded in ownership to everything Dick owned except for a $1.00 bequest each to Rich and Yolanda.

Upon Dick’s death on December 28, 2009, Rich and Sesamie sued Sue, seeking to invalidate the 2008 Estate Plan. Rich and Sesamie also claimed that for a considerable period before Dick’s death Sue systematically misappropriated funds from the income stream of one of Dick’s properties

Page 553

that he had placed in trust in the 2004 Estate Plan. Finally, Rich and Sesamie brought a claim of wrongful death against Sue, alleging that Sue caused or contributed to Dick’s death.

The jury found the 2008 Estate Plan to be invalid, thereby resurrecting the provisions of the 2004 Estate Plan.² The jury also found that Sue misappropriated funds and arrived at a monetary amount to be paid to Rich and Yolanda. But the jury did not find Sue liable for wrongful death. The trial court entered judgment in accordance with the jury’s verdicts.

On appeal, the Court of Appeals reversed the jury’s invalidation of the 2008 Estate Plan, finding insufficient evidence to support the verdict. The Court of Appeals also reversed the jury’s verdict that held Sue liable for the misappropriation of funds. The jury’s finding on the wrongful-death claim was not appealed.

II. ANALYSIS.

A. The trial court did not err in denying Sue’s motions for directed verdict on Rich and Sesamie’s claims that Dick did not have the requisite testamentary capacity to execute the 2008 Estate Plan and that Sue exercised undue influence over Dick in his execution of that plan.

The first issue we address is whether the trial court erred when it denied Sue’s motion for a directed verdict on Rich and Sesamie’s claim that Dick lacked testamentary capacity to execute the 2008 Estate Plan. The second issue is whether the trial court erred when it denied Sue’s motion for directed verdict on Rich and Sesamie’s claim that Sue exercised undue influence over Dick in his execution of the 2008 plan.

After the trial court denied these motions for directed verdict, the case was submitted to the jury, and the jury found in favor of Rich and Sesamie on both claims. Before this Court, Sue argues that the Court of Appeals’ opinion correctly reversed the portion of the judgment that reflected the jury’s verdict, arguing that insufficient evidence supported it.

Trial evidence concerning these issues overlaps, so we analyze them both here, even though the resolution of one of them has the same effect as resolution of the other— either a finding of lack of testamentary capacity or undue influence over the testator ends in nullification of the 2008 Estate Plan and revival of the 2004 Estate Plan.

We first note the highly deferential standard of review we apply in evaluating jury verdicts for sufficiency of the evidence: Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine

Page 554 whether the verdict is " ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’ "^[3]

To execute a valid will, the testator must have testamentary capacity. Former Chief Justice Robert F. Stephens summarized Kentucky law on the testamentary-capacity issue in Bye v. Mattingly :

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. Thus any order purporting to render a person per se unable to dispose of property by will is void ab initio, as such a ruling on testamentary capacity would be premature. This is not to say that such an order is irrelevant, but rather it is not dispositive of the issue of testamentary capacity.

"Kentucky is committed to the doctrine of testatorial absolutism." The practical effect of this doctrine is that 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. 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.⁴

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. "Every man possessing the requisite mental powers may dispose of his property by will in any way he may desire, and a jury will not be permitted to overthrow it, and to make a will for him to accord with their ideas of justice...