Lovely v. Barnett Builders, Inc., No. 2008-CA-002198-MR (Ky. App. 6/11/2010), 2008-CA-002198-MR.
| Decision Date | 11 June 2010 |
| Docket Number | No. 2008-CA-002198-MR.,2008-CA-002198-MR. |
| Parties | Kathy LOVELY, Appellant v. BARNETT BUILDERS, INC.; Phillip W. Barnett; Christian Phillip Barnett; Davin Barnett; Stephen Barnett, a minor, by and through his next friend, Phillip Barnett; Haley Rae Slusher; Rae Beth Barnett; Heather Gearhart, Guardian ad litem for Haley Rae Slusher; Robin A. Smith, Receiver for Barnett Builders, Inc.; and Gregory A. Isaac, Administrator of the Estate of Donnie Barnett Appellees. |
| Court | Kentucky Court of Appeals |
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v.
BARNETT BUILDERS, INC.; Phillip W. Barnett; Christian Phillip Barnett; Davin Barnett; Stephen Barnett, a minor, by and through his next friend, Phillip Barnett; Haley Rae Slusher; Rae Beth Barnett; Heather Gearhart, Guardian ad litem for Haley Rae Slusher; Robin A. Smith, Receiver for Barnett Builders, Inc.; and Gregory A. Isaac, Administrator of the Estate of Donnie Barnett Appellees.
Appeal from Magoffin Circuit Court, Honorable Kimberley Cornett Childers, Judge, Action No. 07-CI-00276.
Mark L. Moseley, Lexington, Kentucky, Brief for Appellant.
John T. Hamilton, Lexington, Kentucky, Brief for Appellees, Christian Phillip Barnett, Stephen Barnett and Davin Barnett.
Before: NICKELL and WINE, Judges; HARRIS,1 Senior Judge.
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NICKELL, JUDGE:
Kathy Lovely has appealed from the Magoffin Circuit Court's findings of fact, conclusions of law, and judgment entered on October 2, 2008, striking the Last Will and Testament of Donnie R. Barnett executed in December 2006 from the probate records, probating a "lost will" executed by Donnie in January 2007, and removing Lovely as the Trustee of any trusts created under either of the two wills. After a careful review of the record, we affirm.
The facts underlying this action are complicated but largely undisputed. Donnie was in the construction business and had extensive holdings in several business and partnership ventures in Kentucky, West Virginia, and North Carolina. Donnie and Kathy were married for twenty-three years when they divorced in 1992. Their union produced one daughter, Rae Beth Barnett, and one grandchild, Haley Rae Slusher. Kathy had custody of the minor grandchild from the time she was one month old and Donnie was very close to the child. Following his divorce from Kathy, Donnie married Andrea Barnett, divorced her a year later, remarried her several years later, and divorced her again in 2006, approximately five months prior to his death. Donnie had resumed a relationship with Kathy following his second divorce from Andrea.
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Donnie was diagnosed with cancer in 2003 and was able to successfully combat the disease for a number of years. However, in early December 2006, his condition began to rapidly deteriorate and doctors informed him he should not expect to live much longer. Donnie thus began to put his affairs in order, first by seeking the counsel of his attorney and long-time friend, Gordon Long, to prepare a last will and testament as well as deeds transferring his interest in several tracts of land to Kathy.2 Long prepared a will for Donnie leaving his entire estate to Kathy and Haley in equal shares. He intentionally did not provide for his daughter due to her severe substance abuse problem. Donnie executed this will on December 8, 2006. Long advised Donnie to obtain estate planning from another attorney, Terri Stallard, an expert in the field, due to his sizeable estate.
On December 18, 2006, Donnie and Kathy met with Stallard in her Lexington, Kentucky, office to discuss Donnie's assets and his estate plan. Donnie added two important elements to his estate plan which were not a part of the will prepared by Long. First, he informed Stallard he wished to leave a three-fifths interest in his numerous partnership interests to his nephews, Christian, Davin and Stephen Barnett, subject to a $100,000.00 floor that was to pass to Kathy and Haley. Second, Donnie indicated he wished for any assets passing to Kathy outside the estate to be credited against her probated share. The balance of his
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estate was to pass in equal shares to Kathy and Haley. Under both wills, Kathy was named as executrix of Donnie's estate and as trustee of any trusts created by the will. After leaving Stallard's office, Donnie visited a Lexington bank and changed approximately $400,000.00 in certificates of deposit to "payable on death" or "P.O.D." instruments whereby Kathy would receive the proceeds immediately upon his death and without those amounts being added to his estate.3
Stallard prepared the necessary documents to effectuate Donnie's estate plans and delivered them electronically to Long on December 22, 2006. Due to Donnie's worsening condition, Long was unable to immediately have the documents executed. However, on January 3, 2007, Long traveled to Donnie's home to have the documents signed. The circumstances surrounding the execution are in dispute in this appeal. Kathy contends the will was not duly executed while the appellees herein rely on Long's trial testimony that the will was, in fact, executed in proper form. Regardless, at some time shortly after the ceremony, Donnie allegedly directed Kathy to shred the signature pages of the will and trust documents Stallard had prepared. Kathy followed Donnie's wishes thus destroying the only fully executed copy of the second will. Donnie mistakenly believed such actions would revoke the second will and its accompanying trust and reinstate the first will he had executed on December 6, 2006. Although the attempted revocation was contested in the trial court, the parties have now agreed the trial
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court correctly determined that Donnie's actions were insufficient to constitute a valid revocation of the second will, and that issue is not properly before us in this appeal.
Donnie died on January 14, 2007. On February 2, 2007, Kathy tendered the December 6, 2006, will to the Magoffin District Court and moved that it be admitted to probate. The first will was ordered probated on February 14, 2007. On October 18, 2007, the instant action was filed in the Magoffin Circuit Court seeking, inter alia, an order setting aside the February 14 order probating the first will and substituting the second will in the probate action. On January 18, 2008, the trial court removed Kathy as executrix and appointed a special administrator for the estate and a receiver for Barnett Builders, Inc.
A bench trial was conducted on August 27, 2008, to determine which, if either, of the two wills was in effect on the date of Donnie's death. Following the trial, the court determined that the probate of the first will should be set aside, the second will should be probated, and Kathy should be permanently removed as executrix and trustee.4 This appeal followed. We affirm.
Kathy first contends the trial court erred in finding the second will was duly executed. She argues the evidence presented was insufficient to prove the will was witnessed by two credible witnesses as required by KRS 394.040, and that it was therefore invalid and of no effect. The appellees contend the trial court
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properly weighed the conflicting testimony and correctly judged the weight and credibility of the evidence before making its decision on the contested facts.
It is undisputed that the original of the second will was destroyed and was thus unavailable for review. To establish the validity of a lost will, the proponent must show "by clear, satisfactory and convincing testimony[:] (1) the due execution of the instrument;...
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