Boone v. Hoskins, NO. 2018-CA-000850-MR
| Decision Date | 06 March 2020 |
| Docket Number | NO. 2018-CA-000850-MR |
| Citation | 613 S.W.3d 45 |
| Court | Kentucky Court of Appeals |
| Parties | Elizabeth Van Meter BOONE, Appellant v. Alyce Boone HOSKINS, Individually and as Executrix of the Estate of Mary McDowell Van Meter Boone; Mary McDowell Hoskins Squire; Alyce Chapin Hoskins; Samuel A.B. Boone; Jennifer Boone Purviance; Caroline B. Graham; Hilary Johnson Boone, IV; Lois Lynn Parrish De Seroux; James L. Parrish ; Lee Patterson McGuire; Christian Patterson ; Wendy Lowe ; Charles Lowe; David Follice; and George A. Hoskins, Appellees |
BRIEFS FOR APPELLANT: Mark A. Wohlander, Stephen G. Amato, Jaron P. Blandford, Jason R. Hollon, Lexington, Kentucky.
BRIEF FOR APPELLEE ALYCE BOONE HOSKINS: Phillip D. Scott, Jason T. Ams, Lexington, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; LAMBERT AND MAZE, JUDGES.
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 Boone1 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: 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...
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