Getty v. Getty

• Decision Date: 06 October 2017
• Docket Number: NO. 2014-CA-000711-MR,NO. 2014-CA-000693-MR,CROSS-APPEAL NO. 2014-CA-000764-MR,NO. 2014-CA-000686-MR,2014-CA-000686-MR,2014-CA-000693-MR,2014-CA-000711-MR
• Parties: BRENDA SUE BRIDGES GETTY, individually, as trustee and beneficiary of the March 22, 2004 Richard J. Getty Living Trust, including as amended on October 24, 2008, as trustee and beneficiary of the March 22, 2004 last will and testament of Richard J. Getty, as executrix and beneficiary under the October 27, 2008, last will and testament of Richard J. Getty as grantee under the October 27, 2008 deed trust transaction, as grantee of the October 27, 2008 grant deed, and 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 APPELLANT v. RICHARD A. GETTY, individually, as trustee and beneficiary of the March 22, 2004, Richard J. Getty Living Trust, and as personal representative, trustee, and beneficiary of the March 22, 2004, last will and testament of Richard J. Getty; SESAMIE BRADSHAW, individually, and as beneficiary of the March 22, 2004, Richard J. Getty Living Trust, and as beneficiary of the March 22, 2004 last will and testament of Richard J. Getty; and ERROL COOPER, as trustee of the March 22, 2004, Richard J. Getty Living Trust, and as personal representative and trustee of the March 22, 2004, last will and testament of Richard J. Getty APPELLEES CAROLYN CARROWAY and KEVAN MORGAN APPELLANTS v. RICHARD A. GETTY, individually, and as trustee and beneficiary of the March 22, 2004 Richard J. Getty Living Trust, and as personal representative, trustee and beneficiary of the March 22, 2004 last will and testament of Richard J. Getty; SESAMIE BRADSHAW, individually, and as beneficiary of the March 22, 2004 Richard J. Getty Living Trust, and 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 as personal representative and trustee of the March 22, 2004 last will and testament of Richard J. Getty; and BRENDA SUE BRIDGES GETTY APPELLEES RICHARD A. GETTY, individually, as trustee and beneficiary of the March 22, 2004 Richard J. Getty Living Trust, as personal representative, trustee and beneficiary of the March 22, 2004 last will and testament of Richard J. Getty, as beneficiary of the Estate of Richard J. Getty, and as personal representative of the Estate of Richard J. Getty; SESAMIE BRADSHAW, individually, as beneficiary of the March 22, 2004 Richard J. Getty Living Trust, and as beneficiary of the March 22, 2004 last will and testament of Richard J. Getty; and ERROL COOPER, as trustee of the March 22, 2004 Richard J. Getty Living Trust, and as personal representative and trustee of the March 22, 2004 last will and testament of Richard J. Getty APPELLANTS v. BRENDA SUE BRIDGES GETTY, individually, as trustee and beneficiary of the March 22, 2004 Richard J. Getty Living Trust, including as amended on October 24, 2008, as personal representative, trustee and beneficiary of the March 22, 2004 last will and testament of Richard J. Getty, as executrix and beneficiary under the October 27, 2008 last will and testament of Richard J. Getty as grantee under the October 27, 2008 deed trust transaction, as grantee of the October 27, 2008 grant deed, and 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, Individually and as trustee of the October 27, 2008 Deed Trust; and JOSEPH MAYER, as trustee of the March 22, 2004 Richard J. Getty Living Trust as amended on October 24, 2008, as executor of the October 27, 2008 last will and testament of Richard J. Getty, and as Attorney-in-Fact of Richard J. Getty under the October 24, 2008 general durable power of attorney; and KEVAN MORGAN APPELLEES CAROLYN CARROWAY, individually and as trustee of the October 27, 2008 Deed Trust; JOSEPH MAYER, as trustee of the March 22, 2004 Richard J. Getty Living Trust as amended on October 24, 2008, as executor of the October 27, 2008 last will and testament of Richard J. Getty, and as attorney-in-fact of Richard J. Getty under the October 24, 2008 general durable power of attorney; and KEVAN MORGAN CROSS-APPELLANTS v. RICHARD A. GETTY, individually, as trustee and beneficiary of the March 22, 2004, Richard J. Getty Living Trust, and as personal representative, trustee and beneficiary of the March 22, 2004, last will and testament of Richard J. Getty; SESAMIE BRADSHAW, individually, as beneficiary of the March 22, 2004, Richard J. Getty Living Trust, and 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 as personal representative and trustee of the March 22, 2004, last will and testament of Richard J. Getty; and BRENDA SUE BRIDGES GETTY CROSS-APPELLEES
• Court: Kentucky Court of Appeals

BRENDA SUE BRIDGES GETTY, individually, as trustee and beneficiary of

the March 22, 2004 Richard J. Getty Living Trust, including as amended on October 24, 2008,

as trustee and beneficiary of the March 22, 2004 last will and testament of Richard J. Getty,

as executrix and beneficiary under the October 27, 2008, last will and testament of Richard J. Getty

as grantee under the October 27, 2008 deed trust transaction, as grantee of the October 27, 2008 grant deed,

and as attorney-in-fact of Richard J. Getty under the February 23, 2004 power of attorneyand under the October 24, 2008 general durable power of attorney APPELLANT v. RICHARD A. GETTY, individually, as trustee and beneficiary of the March 22, 2004,Richard J. Getty Living Trust, and as personal representative, trustee, and beneficiary of the March 22, 2004,last will and testament of Richard J. Getty; SESAMIE BRADSHAW, individually,and as beneficiary of the March 22, 2004, Richard J. Getty Living Trust,

and as beneficiary of the March 22, 2004 last will and testament of Richard J. Getty;

and ERROL COOPER, as trustee of the March 22, 2004,Richard J. Getty Living Trust, and as personal representative and trusteeof the March 22, 2004, last will and testament of Richard J. Getty APPELLEESCAROLYN CARROWAY and KEVAN MORGAN APPELLANTS v. RICHARD A. GETTY, individually, and as trustee and beneficiary of the March 22, 2004

Richard J. Getty Living Trust, and as personal representative, trustee and beneficiary of the March 22, 2004

last will and testament of Richard J. Getty; SESAMIE BRADSHAW, individually, and as beneficiary

of the March 22, 2004 Richard J. Getty Living Trust, and 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 as personal representative and trustee of the March 22, 2004 last will

and testament of Richard J. Getty; and BRENDA SUE BRIDGES GETTY APPELLEES

RICHARD A. GETTY, individually, as trustee and beneficiary of the March 22, 2004 Richard J. Getty

Living Trust, as personal representative, trustee and beneficiary of the March 22, 2004 last will

and testament of Richard J. Getty, as beneficiary of the Estate of Richard J. Getty,

and as personal representative of the Estate of Richard J. Getty; SESAMIE BRADSHAW,

individually, as beneficiary of the March 22, 2004 Richard J. Getty Living Trust, and as beneficiaryof the March 22, 2004 last will and testament of Richard J. Getty; and ERROL COOPER,as trustee of the March 22, 2004 Richard J. Getty Living Trust, and as personal representativeand trustee of the March 22, 2004 last will and testament of Richard J. Getty APPELLANTS v. BRENDA SUE BRIDGES GETTY, individually, as trustee and beneficiary of the March 22, 2004

Richard J. Getty Living Trust, including as amended on October 24, 2008, as personal representative,

trustee and beneficiary of the March 22, 2004 last will and testament of Richard J. Getty,

as executrix and beneficiary under the October 27, 2008 last will and testament of Richard J. Getty

as grantee under the October 27, 2008 deed trust transaction, as grantee of the October 27, 2008 grant deed,

and 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,

Individually and as trustee of the October 27, 2008 Deed Trust;

and JOSEPH MAYER, as trustee of the March 22, 2004 Richard J. Getty Living Trust

as amended on October 24, 2008, as executor of the October 27, 2008 last will

and testament of Richard J. Getty, and as Attorney-in-Fact of Richard J. Getty

under the October 24, 2008 general durable power of attorney; and KEVAN MORGAN APPELLEES

CAROLYN CARROWAY, individually and as trustee of the October 27, 2008 Deed Trust;

JOSEPH MAYER, as trustee of the March 22, 2004 Richard J. Getty Living Trust as amended

on October 24, 2008, as executor of the October 27, 2008 last will and testament of Richard J. Getty,

and as attorney-in-fact of Richard J. Getty under the October 24, 2008

general durable power of attorney; and KEVAN MORGAN CROSS-APPELLANTS v. RICHARD A. GETTY, individually, as trustee and beneficiary of the March 22, 2004,Richard J. Getty Living Trust, and as personal representative, trustee and beneficiary of the

March 22, 2004, last will and testament of Richard J. Getty; SESAMIE BRADSHAW,

individually, as beneficiary of the March 22, 2004, Richard J. Getty Living Trust,

and 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 as personal representative and trustee of the March 22, 2004, last will and testament of Richard J. Getty;

and BRENDA SUE BRIDGES GETTY CROSS-APPELLEES

NO. 2014-CA-000686-MR

NO. 2014-CA-000693-MR

NO. 2014-CA-000711-MR

CROSS-APPEAL NO. 2014-CA-000764-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 6, 2017

NOT TO BE PUBLISHED

APPEAL FROM BOURBON CIRCUIT COURT

HONORABLE ROBERT MCGINNIS, JUDGE

ACTION NOS. 09-CI-00476 AND 10-CI-00424

OPINION

REVERSING AS TO APPEAL NOS. 2014-CA-000686, 2014-CA-000693, AND CROSS-APPEAL NO. 2014-CA-000764; AFFIRMING AS TO APPEAL NO. 2014-CA-000711

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES.

KRAMER, CHIEF JUDGE: These consolidated appeals relate to an estate plan Richard J. Getty ("Dick") purportedly executed on October 27, 2008, approximately one year before he died at the age of eighty-six following years of poor health and a period of hospice care. As part of his October 27, 2008 estate plan, Dick invalidated a will he had previously executed on March 22, 2004; heinvalidated a revocable trust he had established on March 22, 2004, to hold title to commercial property he owned in Simi Valley, California (the "Regency Center"); he deeded the Regency Center to himself and Sue Getty, his wife of approximately twenty-six years, as joint tenants with rights of survivorship; he deeded the house in which he resided with Sue, along with its surrounding property (the "farm"), to his attorney Carolyn Carroway, as trustee, and then to himself and Sue as joint tenants with rights of survivorship; and, lastly, he executed a new will in which he left the bulk of his estate to Sue, and only one dollar each to his son and daughter, Richard A. Getty ("Rich") and Yolanda Richardson.

Following Dick's death and action from Sue to probate the October 27, 2008 will, Rich, along with Sesamie Bradshaw (Dick's granddaughter and Yolanda's daughter and sole heir¹), filed suit in Bourbon Circuit Court in their various above-captioned capacities² to invalidate the October 27, 2008 estate plan, asserting that Dick had either lacked testamentary capacity when he executed each of the instruments comprising it, or that the estate plan was the product of undue influence from Sue. Additionally, Rich and Sesamie asserted claims against Sue for wrongful death, alleging she hastened Dick's passing by either overmedicating or poisoning him while she cared for him during the last years of his life.

Also, Rich sought to recoup from Sue rental income generated by the Regency Center. Rich claimed that during Sue's marriage to Dick, Sue had stolenor "misappropriated" this rental income from Dick or Dick's March 22, 2004 trust. Rich asserted his "misappropriation" claim against Sue in his capacity as co-executor of Dick's estate under the March 2004 will, and as co-trustee of the March 2004 trust—instruments he claimed were not effectively invalidated by the October 27, 2008 estate plan.

Ultimately, these issues were tried before a jury, which found in Sue's favor regarding Rich's and Sesamie's wrongful death claims. But, the jury invalidated Dick's October 27, 2008 estate plan after determining Dick had lacked testamentary capacity and had been subjected to undue influence from Sue when he executed it. The jury also determined that while Sue was married to Dick, she had indeed "misappropriated" $162,500 in rental income generated from the Regency Center and that she owed this amount to Dick's still valid March 22, 2004 trust.

After the circuit court entered judgment in conformity with the jury's findings, these appeals followed. We will outline the issues presented in each of the appeals before this Court.

Appeal No. 2014-CA-000686 was filed by Sue. In this appeal, Sue takes issue with the following rulings of the circuit court: (1) the denial of her motion for a directed verdict regarding the appellees' claim that Dick lacked capacity, or was unduly influenced, to execute most of the instruments connected with his October 27, 2008 estate plan;³ (2) the denial of her motion for a directedverdict regarding the appellees' claim that she "misappropriated" Regency Center funds from Dick's aforementioned March 22, 2004 trust; and (3) the trial court's decision to award the appellees post-judgment interest at a rate of 12%, rather than at a lower rate.

Appeal No. 2014-CA-000693 was filed by Carolyn Carroway and Kevan Morgan, two of the attorneys who represented Sue during some of the proceedings below. It challenges the validity of an order of contempt issued by the circuit court against Sue, Carroway and Morgan. The background of this order is discussed in depth later in this opinion. It included two sanctions: First, it held all three of these individuals jointly and severally liable for attorney's fees expended by Rich and Sesamie prosecuting their contempt motion; second, it determined Rich and Sesamie were entitled to a "destruction of evidence" jury instruction.

As the caption of this opinion indicates, Sue and her attorneys filed separate appeals. Sue did not perfect an appeal with respect to the circuit court's decision to hold her jointly in contempt with her attorneys. Sue's attorneys, on the other hand, did perfect such an appeal; they effectively named Sue as a party to their appeal—albeit as an appellee, rather than an appellant.

Despite Sue's effective...