Larkey, IV v. Larkey, No. 2008-CA-001956-MR (Ky. App. 6/11/2010)
| Decision Date | 11 June 2010 |
| Docket Number | No. 2008-CA-002178-MR.,No. 2008-CA-001956-MR.,2008-CA-001956-MR.,2008-CA-002178-MR. |
| Parties | James D. LARKEY, IV, Individually, and As Trustee of The Trust of James D. Larkey, III, Deceased, Appellant, v. Mark LARKEY, Appellee. |
| Court | Court of Appeals of Kentucky |
Appeal from Letcher Circuit Court Honorable Samuel T. Wright, III, Judge, Action Nos. 07-CI-00038 & 08-CI-00270.
Ronald G. Polly, Whitesburg, Kentucky, Briefs for Appellant.
Todd C. Myers, Donald M. Wakefield, Lexington, Kentucky, Brief for Appellee.
Before: LAMBERT and STUMBO, Judges; HENRY,1 Senior Judge.
NOT TO BE PUBLISHED
James D. Larkey, IV (Appellant), proceeding individually and as trustee of the trust of James D. Larkey, III, appeals from two separate orders of the Letcher Circuit Court that dismissed both of his will contest actions filed against Mark Larkey (Appellee). Appellant and Appellee are the surviving sons of Dorothy Larkey. This appeal centers on the issue of where Ms. Larkey resided at the time of her death and, accordingly, which county (Fayette or Letcher) has the authority to conduct a probate proceeding regarding her will and estate. After our review, we affirm as to both orders of dismissal.
On May 18, 1988, Ms. Larkey executed a Last Will & Testament that named Appellant as executor of her estate and as a beneficiary of her will. She supplemented this will with a Codicil on February 18, 1994. (These documents will henceforth be collectively referred to as the "First Will.") At the time the First Will was executed, Ms. Larkey lived in Whitesburg, Letcher County, Kentucky.
On February 19, 2004, Ms. Larkey revoked the First Will by executing a new Last Will & Testament (henceforth referred to as the "Second Will") that named Appellee as the executor of her estate and explicitly removed Appellant as a beneficiary. After executing the Second Will, Ms. Larkey moved to Lexington, Fayette County, Kentucky to live closer to Appellee. She resided there for nearly three years before passing away on December 23, 2006.
On December 28, 2006, Appellant filed a probate action before the Letcher District Court seeking to probate the First Will and to be appointed as its executor. Appellee attended the resulting probate hearing with counsel and argued that because Ms. Larkey was residing in Fayette County at the time of her death any probate proceeding had to be maintained in Fayette County. Appellee subsequently filed his own probate action in the Fayette District Court seeking to probate the Second Will.2
On January 26, 2007, the Letcher District Court conducted an evidentiary hearing and took proof as to the question of where Ms. Larkey was residing at the time of her death. Appellant introduced a psychiatric report produced by Dr. Robert Granacher in another civil litigation involving the parties. Dr. Granacher evaluated Ms. Larkey on July 20, 2006 — nearly three years after she moved to Lexington — and diagnosed her with progressive dementia with a loss of intellectual capacity. Appellant used this report to support the argument that while Ms. Larkey lived in Fayette County at the time of her death, she did not have the mental capacity to form the intent to make that county her domicile.
Appellant also testified that Ms. Larkey still owned property in Letcher County and that she lived by herself there until November 2003, when Appellee took her to live with him in Fayette County. Appellant acknowledged that he had had no contact with his mother after this but indicated that as far as he knew, she was still registered to vote in Letcher County.
In response, Appellee produced the following evidence to support his position that Ms. Larkey was a resident of Fayette County at the time of her death: (1) a copy of Ms. Larkey's driver's license, which had a Fayette County address; (2) a Fayette County "Motor Vehicle Tax and/or Registration Renewal Notice" for Ms. Larkey's automobile; (3) home insurance letters acknowledging that Ms. Larkey had moved from Letcher County to Fayette County; and (4) a copy of the Second Will.
Appellee also introduced a deposition from Robert Gullette, Jr., the attorney who prepared the Second Will. Gullette testified that he had first met Ms. Larkey in November 2003 when she came to live with Appellee in Fayette County. According to Gullette, he had spoken on the phone with Ms. Larkey on several occasions in late 2003, and he indicated that she did not appear to have had any mental defect or to have been under any undue influence at that time or when the Second Will was executed. Gullette also testified that Ms. Larkey had expressed a clear intent to reside in Fayette County for the remainder of her life. Appellee also testified that he took Ms. Larkey to live with him in Fayette County in November 2003 because her furnace was not working properly and because she was worried about living alone. He also indicated that after Ms. Larkey moved to Fayette County, she had all of her furniture in her home in Letcher County moved to that location and had all of the utilities in her old home turned off.
Shortly following the evidentiary hearing — and before the district court issued a ruling on the venue question — Appellant filed an original action against Appellee in the Letcher Circuit Court (Civil Action No. 07-CI-00038) pursuant to KRS 24A.120(2) and KRS 394.240. In that action, Appellant asked the circuit court to preemptively declare Ms. Larkey to have been a resident of Letcher County at the time of her death and to enjoin Appellee from proceeding with the probate petition in the Fayette District Court. He further sought a declaration that the First Will was valid — and the Second Will consequently invalid — because Ms. Larkey lacked testamentary capacity to execute the Second Will and/or because she was unduly influenced to execute it. Appellee subsequently filed an answer in which he asserted that the circuit court lacked venue to consider the action.
Meanwhile, on July 7, 2008, the Letcher District Court entered an order in which it rejected probate of the First Will on the grounds that Ms. Larkey did not reside in Letcher County at the time of her death. In doing so, the district court concluded that it retained jurisdiction to rule on the issue because the Letcher Circuit Court action had been prematurely filed before the district court had ruled on whether or not it would admit the First Will to probate. The district court then noted, citing to the express language of KRS 394.140, that wills are required to be proven before, and admitted to record by, the district court of the testator's residence. After reciting the evidence that had been presented at the evidentiary hearing of January 26, 2007, the court concluded that Ms. Larkey resided in Fayette County at the time of her death and concluded that Fayette County was the proper venue to probate her will.
Immediately thereafter, on July 10, 2008, Appellant filed another original action against Appellee in the Letcher Circuit Court (Civil Action No. 08-CI-00270) pursuant to KRS 24A.120(2) and KRS 394.240. This action was virtually identical to the one previously filed by Appellant and once again asked the circuit court to find that Ms. Larkey was a resident of Letcher County at the time of her death and to declare that the First Will was valid and the Second Will invalid because of a lack of testamentary capacity and/or the existence of undue influence. Appellant also argued that the district court's order finding that proper venue for the probate action lay in Fayette County was void and unenforceable because the district court had lost jurisdiction over the case once Appellant filed his first will contest action in Letcher Circuit Court.
On July 15, 2008, Appellee notified the circuit court of the district court's ruling. He subsequently filed a motion to dismiss Appellant's first will contest action on the grounds that venue did not lie in Letcher County and that Appellant had prematurely filed the action. He also filed a motion to dismiss Appellant's second will contest action on the same grounds of improper venue.
On September 18, 2008, the circuit court entered an order dismissing Civil Action No. 07-CI-00038. The order provided no grounds for the decision. On October 22, 2008, the circuit entered an order dismissing Civil Action No. 08-CI-00270. Again, no grounds were given for the decision. Appellant filed appeals from both orders that were consolidated by order of this Court on January 15, 2009.
On appeal, Appellant argues that the Letcher Circuit Court erred in dismissing both of his complaints. In so doing, he specifically contends that the Letcher District Court lacked the authority to determine Ms. Larkey's residency at the time of her death. Appellant states that the Letcher Circuit Court was the proper venue for probating her will because resolution of that issue necessarily required an examination of her mental capacity to change her residence and whether she was unduly influenced to do so. Appellant asserts that issues of mental capacity and undue influence in probate matters may be resolved only by circuit courts. In response, Appellee argues that the district court had the authority to determine whether it was the appropriate venue for the subject will probate action; moreover, the Letcher Circuit Court properly dismissed Appellant's actions because, as determined by the district court, Ms. Larkey was not a resident of Letcher County at the time of her death. The parties also raise a number of procedural issues that merit discussion relating to how Appellant challenged the district court's authority to proceed and its ultimate decision.
We feel constrained to insert a caveat at this point regarding confusion of the terms "venue" and "jurisdiction" in Kentucky probate residencyrequirement law in general and in this case in particular. KRS 394.140 uses the term "venue" although ...
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