Kathryn Towery v. Craig T. McCormick in His Capacity as of the Estate of James T. ( 2022 )

RENDERED: AUGUST 19, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1551-MR
KATHRYN TOWERY; KAILEEN
TOWERY; AND DWAYNE A.
TOWERY, FATHER AND NEXT-OF-
FRIEND OF KOLBY TOWERY APPELLANTS
APPEAL FROM WEBSTER CIRCUIT COURT
v. HONORABLE C. RENE’ WILLIAMS, JUDGE
ACTION NO. 18-CI-00037
CRAIG T. McCORMICK, IN HIS
CAPACITY AS EXECUTOR OF THE
ESTATE OF JAMES T. McCORMICK,
DECEASED; CRAIG T. McCORMICK,
AS TRUSTEE OF THE JAMES T.
McCORMICK REVOCABLE LIVING
TRUST; CRAIG T. McCORMICK,
INDIVIDUALLY; FREDA S.
McCORMICK, INDIVIDUALLY; AND
ALLISON McCORMICK,
INDIVIDUALLY APPELLEES
AND
NO. 2019-CA-1552-MR
AUNDREA L. TOWERY APPELLANT
APPEAL FROM WEBSTER CIRCUIT COURT
v. HONORABLE C. RENE’ WILLIAMS, JUDGE
ACTION NO. 18-CI-00037
CRAIG T. McCORMICK, IN HIS APPELLEES
CAPACITY AS EXECUTOR OF THE
ESTATE OF JAMES T. McCORMICK,
DECEASED; CRAIG T. McCORMICK,
AS TRUSTEE OF THE JAMES T.
McCORMICK REVOCABLE LIVING
TRUST; CRAIG T. McCORMICK,
INDIVIDUALLY; FREDA S.
McCORMICK, INDIVIDUALLY;
AND ALLISON McCORMICK,
INDIVIDUALLY
AND
NO. 2019-CA-1576-MR
ESTATE OF JAMES T. McCORMICK,
CRAIG T. McCORMICK,
EXECUTOR; CRAIG T.
McCORMICK; FREDA S.
McCORMICK; JAMES T.
McCORMICK REVOCABLE LIVING
TRUST, CRAIG T. McCORMICK,
TRUSTEE; AND ALLISON
McCORMICK APPELLEES/CROSS-APPELLANTS
CROSS-APPEAL FROM WEBSTER CIRCUIT COURT
v. HONORABLE C. RENE’ WILLIAMS, JUDGE
ACTION NO. 18-CI-00037
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AUNDREA L. TOWERY; KAILEEN
TOWERY; KATHRYN TOWERY;
AND DWAYNE TOWERY AS NEXT-
OF-FRIEND AND FATHER OF
KOLBY TOWERY APPELLANTS/CROSS-APPELLEES
OPINION
AFFIRMING APPEAL NO. 2019-CA-1551-MR,
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING APPEAL NO. 2019-CA-1552-MR,
AND AFFIRMING CROSS-APPEAL NO. 2019-CA-1576-MR
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Kathryn Towery, Kaileen Towery, and Dwayne A. Towery,
father and next-of-friend of Kolby Towery, bring Appeal No. 2019-CA-1551-MR
from May 23, 2019, orders, a May 31, 2019, order, a June 6, 2019, order, and a
September 12, 2019, order of the Webster Circuit Court. Aundrea L. Towery
brings Appeal No. 2019-CA-1552-MR from May 23, 2019, orders, a June 6, 2019,
order, and a September 12, 2019, order of the Webster Circuit Court. Estate of
James T. McCormick, Craig T. McCormick, Executor; Craig T. McCormick; Freda
S. McCormick; James T. McCormick Revocable Living Trust, Craig T.
McCormick, Trustee; and Allison McCormick bring Cross-Appeal No. 2019-CA-
1576-MR from May 23, 2019, orders, a May 31, 2019, order, and a September 12,
2019, order. We affirm Appeal No. 2019-CA-1551-MR and affirm in part, reverse
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in part, and remand Appeal No. 2019-CA-1552-MR. We also affirm Cross-Appeal
2019-CA-1576-MR.
James T. McCormick (Tommy) was a business man residing in
Webster County, Kentucky. Tommy had founded Custom Engineering, Inc., and
had amassed considerable wealth at the time of his death on January 5, 2017. He
was survived by his wife of 47 years, Freda McCormick, and by two children,
Craig T. McCormick and Aundrea L. Towery. Craig has two children, and
Aundrea has three – Kathryn Towery, Kaileen Towery, and Kolby Towery.
On September 8, 2017, Craig filed the Last Will and Testament of
Tommy in the Webster District Court (Action No. 17-P-00088). The will was
executed on December 18, 2016 (2016 Will). Under the 2016 Will, Craig was
appointed as executor and most of Tommy’s property passed to Craig T.
McCormick Revocable Living Trust (Trust). The Trust was initially created on
April 18, 2011, but was restated by execution of a Restatement of Trust Agreement
(Trust Agreement) also on December 18, 2016. Neither Aundrea nor her three
children were devised any property under the 2016 Will or were provided for by
the 2016 Trust.
On March 16, 2018, Aundrea filed a complaint and, on June 25, 2018,
an amended complaint against Craig, in his capacity as Executor of the Estate of
James; Craig, in his capacity as Trustee for the Trust; Craig, individually; Freda;
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and Allison McCormick, Craig’s wife (collectively referred to as defendants).1 In
the complaint, Aundrea alleged, in relevant part:
COUNT I – FORGERY AND PROMOTION OF
FRAUDULENT DOCUMENTS
20. The purported Last Will and Testament of James
T. McCormick is invalid as it was not properly executed
in compliance with the provisions of [Kentucky Revised
Statutes] KRS 394.040.
21. The purported signature of James T. McCormick
on the Last Will and Testament dated December 18,
2016, admitted to probate by the Webster District Court
on September 19, 2017, is not that of James T.
McCormick. The handwriting of the decedent on the
Last Will and Testament has been examined by an
expert. The expert has affirmed that the signature on said
Last Will and Testament of James T. McCormick, dated
December 18, 2016, is not the genuine signature of James
T. McCormick. The Will is a forged and fraudulent
document.
22. The decedent, James T. McCormick, did not sign
the alleged Last Will and Testament on December 18,
2016. The Plaintiff, Aundrea Towery, and others were
continuously in the home of the decedent all day on
December 18, 2016, for her daughter’s birthday party.
James T. McCormick did not leave the house on
December 18, 2016. None of the witnesses named in the
alleged Will came to the home of James T. McCormick
on December 18, 2016. The notary named on the Last
Will and Testament did not come to the home of
James T. McCormick on December 18, 2016. None of
the witnesses and/or the notary who each purportedly
1
Allison McCormick was added as a defendant by a February 8, 2019, order of the Webster
Circuit Court. The claims of tortious interference with inheritance and civil conspiracy were
alleged against Allison.
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signed the purported Will in the presence of each other
and in the presence of James T. McCormick, signed the
will on December 18, 2016. The signature of the
Testator, James T. McCormick, was forged.
23. Kentucky law requires that the testator sign a will
in the presence of two witnesses and that the witnesses
sign in the presence of each other.
24. As the signature on the Will is not that of James T.
McCormick and the witnesses did not sign the will in the
presence of either James T. McCormick or each other on
December 18, 2016, the Will is invalid.
....
26. Further, as the purported signature of James T.
McCormick on the December 18, 2016, amendment to
the 2011 James T. McCormick Revocable Living Trust is
not the signature of James T. McCormick. The
handwriting of the decedent on the December 18, 2016,
Trust document has been examined by an expert. The
expert has also affirmed that the signature of James T.
McCormick is not the genuine signature of James T.
McCormick. The December 18, 2016, Trust document is
a forged and fraudulent document. The Plaintiff,
Aundrea Towery, and others were continually in the
home of James T. McCormick all day on December 18,
2016. James T. McCormick did not sign the purported
Trust Amendment on December 18, 2016. James T.
McCormick did not leave the house all day on December
18, 2016. The purported notary did not properly notarize
the alleged signature of James T. McCormick on
December 18, 2016, in the presence of James T.
McCormick.
27. The signature of James T. McCormick on the
December 18, 2016, Trust document was forged.
As a result, the December 18, 2016, amendment to the
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James T. McCormick Living Trust is void and of no
effect.
....
COUNT II – LACK OF CAPACITY
....
31. Prior to the purported execution of the Will on
December 18, 2016, and at the time thereof, the decedent,
James T. McCormick, was under the influence of various
medications and had taken chemotherapy on December
16, 2016.
32. The medications and intensive cancer treatment
worked on the mind and body of James T. McCormick to
such an extent that he did not know the natural objects of
his bounty, his obligations to them, and the character and
value of his estate on December 18, 2016. Further, as
a result of the various medications and chemotherapy,
James T. McCormick failed to dispose of his estate in
accordance with his own fixed estate planning. The Will,
Trust and two (2) Deeds and other documents
purportedly signed on December 18, 2016, are not
consistent with an estate plan for the decedent, which
included provisions that would not otherwise have been
present to exclude the Plaintiff, Aundrea Towery, absent
the effects of the medications and chemotherapy
and undue influence.
33. James T. McCormick was in extreme pain and,
combined with the levels of medication he was taking
and chemotherapy two (2) days earlier, James T.
McCormick suffered from mental and physical
impairment and incapacity on December 18, 2016.
34. As James T. McCormick lacked the requisite
mental capacity to execute the Last Will and Testament,
the Amendment to the 2011 James T. McCormick
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Revocable Living Trust, and the two deeds conveying
approximately thirty-five (35) parcels of property and
any other documents of conveyance when he executed
those instruments on December 18, 2016. All of the
aforementioned instruments are invalid and should be
stricken from the records of the Webster and Crittenden
County Clerk’s Offices.
COUNT III – UNDUE INFLUENCE
....
36. James T. McCormick’s purported signing of the
disputed documents and any additional actions
purportedly taken by James T. McCormick on December
18, 2016, were the product of undue influence by the
Defendants, Freda and Craig, and others acting in concert
with them, upon the Decedent, James T. McCormick.
The Defendants interfered with and excluded the express
intent of James T. McCormick, prior to the effects of his
chemotherapy and medications taken by him, that his real
and personal property be distributed pursuant to his
express intent as set forth in the terms of James T.
McCormick’s prior estate planning by essentially
disposing all of his property and that of the Plaintiff to
his spouse and two (2) children, and increasing his estate
tax liability.
37. The Defendants initiated and conducted a scheme
on their behalf, wherein they individually engaged
professionals to expressly prepare documents, including
the Will, trust, deeds and assignment of personal
property. To the best of the Plaintiffs’ information and
belief, the documents were concealed and not disclosed
to James T. McCormick.
38. To the best of the Plaintiff’s information and
belief, the Defendants engaged and directed the
preparation and execution of all of the documents that
were not signed by James T. McCormick on December
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18, 2016, eliminating the Plaintiff, the daughter of James
T. McCormick.
39. At the time the documents were executed, James
T. McCormick was terminally ill and both physically and
mentally weak, undergoing cancer treatment and under
the influence of many medications.
40. The documents were unnatural in their provisions,
as they were in direct conflict with the prior intent of
James T. McCormick that all his assets be divided
equally between his heirs at law and that his federal
estate taxes being reduced to the maximum extent
allowed.
41. To the best of the Plaintiff’s information and
belief, the principal beneficiaries of the documents, being
Defendants Craig and Freda, and those acting in concert
with them, were directly involved in and coordinated the
preparation of the documents.
42. Defendants Craig and Freda exerted control over
the business affairs of James T. McCormick.
....
44. As a consequence of the undue influence exerted
upon James T. McCormick by the aforementioned
Defendants, the documents executed on December 18,
2016, were not the will of James T. McCormick but
instead constituted the sole will of the Defendants and
those acting in concert with them.
45. Plaintiff requests this Court, after a trial by jury, to
enter judgment declaring the Last Will and Testament of
James T. McCormick, the Amendment to the James T.
McCormick Revocable Living Trust, two deeds and an
“Assignment of Personal Property,” all purportedly
signed on December 18, 2016, to each be invalid and null
and void ab initio, and the real property and personal
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property, passing to the Estate of James T. McCormick
and then to the Plaintiff and Defendants pursuant to the
terms of the prior Last Will and Testament of James T.
McCormick and/or intestate.
....
COUNT XI – TORTIOUS INTERFERENCE WITH
EXPECTANCY
95. The Plaintiff was a vested beneficiary and entitled
to the percentage of the corpus of the Estate of James T.
McCormick pursuant to the prior estate planning
documents executed by the decedent, James T.
McCormick prior to 2016.
96. The Defendant and others acting in concert with
them, have intentionally and willfully interfered with the
Plaintiff’s expectancy of inheritance by conduct
amounting to one or more acts of fraud, forgery, duress
or undue influence.
97. But for the Defendants’ actions, and other acting in
concert with them, a reasonable expectancy of
inheritance would have been realized by the Plaintiff.
....
COUNT XII – CIVIL CONSPIRACY
....
100. As a result of the acts described herein and other
acts yet still undiscovered and unknown at this time, the
Defendants and others acting in concert with them, acted
under an agreement, in concert and pursuant to a
common scheme to divert the assets of James T.
McCormick from being devised, bequeathed and
conveyed to the Plaintiff in conformity with the
intentions and prior estate planning of the decedent, and
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in lieu thereof retained in his estate, and administered and
distributed pursuant to the terms of the Plaintiff’s father’s
Last Will and Testament and Revocable Trust, as
Amended in 2012, executed prior to December 18, 2016.
June 25, 2018, Amended Complaint at 6-11 and 21-22.
Defendants filed an answer to the complaint, and after the amended
complaint was filed, defendants filed a motion to dismiss. In the motion to
dismiss, defendants argued that Aundrea lacked standing as she was not an
aggrieved party per KRS 394.200. Defendants maintained that Aundrea was not a
beneficiary under the 2016 Will and Trust and, likewise, was not a beneficiary
under Tommy’s prior Will and Trust executed in 2011. Therefore, defendants
asserted that Aundrea failed to state a claim upon which relief could be granted due
to her lack of standing.
Subsequently, on August 10, 2018, Kathryn, Kaileen, and Dwayne A.
Towery, as next friend and father of Kolby, (collectively referred to as the Towery
grandchildren) filed a motion to intervene. In the motion, the Towery
grandchildren stated that under prior wills and trusts of their grandfather, Tommy,
they were beneficiaries and would be affected by the outcome of the proceedings.
Simultaneously, on August 10, 2018, Aundrea filed a response to
defendants’ motion to dismiss. Aundrea argued that the defendants waived the
issue of standing because said defense was not specifically raised in defendants’
answer to the original complaint. Instead, Aundrea pointed out that defendants
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only raised the defense in a motion to dismiss filed after the amended complaint.
Alternatively, Aundrea maintained that she possessed standing to challenge the
validity of the 2016 Will and Trust because she was an heir at law.
By order entered October 22, 2018, the circuit court granted the
Towery grandchildren’s motion to intervene. In the Towery grandchildren’s
crossclaim and counterclaim, they requested:
1. That there be adjudication and determination as to
documents which constitute the Last Will and Testament,
Trusts and Estate plans of the decedent and grandfather
James T. McCormick.
2. That the rights of the Intervenors in and to the
Estate of James T. McCormick be adjudicated by this
Court.
October 22, 2018, Intervenors’ Crossclaim and Counterclaim at 2.
The circuit court ultimately granted defendants’ motion to dismiss
based upon Aundrea’s lack of standing to challenge the validity of the 2016 Will
and Trust in a November 7, 2018, order. The circuit court concluded that Aundrea
was not an aggrieved party pursuant to KRS 394.240. Aundrea’s claims unrelated
to the validity of the 2016 Will and Trust were not affected by the court’s order of
dismissal.
Defendants then filed a motion for summary judgment on March 22,
2019. In the motion, defendants asserted that no material issues of fact existed as
to Tommy’s mental capacity to execute the 2016 Will and Trust Agreement:
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Tommy’s estate plan – his will and trust – and the steps
taken in furtherance thereof are clear evidence of a
rational act, rationally done. Tommy hired an attorney to
prepare his estate planning documents. See generally
Blanford Aff. He scheduled that attorney to come to him
at his Custom Engineering Offices in Clay, Kentucky.
He arranged to have witnesses at Custom Engineering for
the execution of the estate planning documents.
During the month of December, 2018, Tommy
spoke with his attorney and his investment and wealth
advisors. He clearly expressed his desires to his attorney;
his primary concern being provision and protection of his
wife. With Mr. Legate, Tommy was working to move
non-qualified assets from his investment account into his
trust, completing the funds transfer on December 22,
2016, mere days after executing the Trust document.
Tommy also worked to move his Hilliard Lyons account
to the Trust, said transfer being completed on December
20, 2016, again, mere days after executing the Trust
document. Tommy was fully competent and knew
exactly what he was doing. Tommy’s is a rational act,
rationally done and shows he was of a sound and
disposing mind during its execution.
A number of witnesses testified Tommy never lost his
mental abilities. He was still working and running the
operations of Custom Engineering.
When he executed his will, Tommy had the
requisite knowledge of the four items set forth above.
First, Tommy knew the objects of his bounty. Aunde
[sic], Dwayne, Kaileen, and Kolby were visiting the same
day Tommy executed his will. In their depositions, they
admit he always knew them throughout their visit.
Kaileen Dep. at 168:14-17; Aundrea Dep. at 63:9-18;
Dwayne Dep. at 90:18-19. Tommy expressed his
concerns regarding the ultimate disposition of his
property if his wife should remarry. Freda was the object
of his bounty, but, should she remarry, that person was
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not. Tommy took steps to ensure any future spouse
would not receive any portion of his estate.
Second, Tommy knew his obligations to the
objects of his bounty. Freda was aware, participated, and
authorized the transfers to the Trust. Tommy was
adamant that Freda be well provided for during her
lifetime, and protected from predators. Both Freda and
Craig attended the meeting with his attorney at Tommy’s
request.
Tommy took steps to ensure his investment
accounts were properly conveyed to the trust. See
generally Adam Legate Aff., Burl Milligan Aff. During
the meeting with his attorney immediately before
executing his will, he had questions about property he
owned in Florida. Tommy specifically listed the Custom
Engineering stock and directed Craig receive it
immediately upon his death.
Finally, Tommy’s estate was disposed according to
his purpose. Tommy wanted Freda well provided for in
her lifetime and protected from predators. He also
expressed concerns regarding his wife’s possible
remarriage after his death. A such, he appointed his son,
Craig, as Trustee. To ensure Aunde [sic] did not receive
anything from an earlier insurance trust, Tommy stopped
making payment on the policy so it lapsed and the Trust
terminated. Aunde [sic] had not been named as a
beneficiary in neither the 2009 or 2011 Will or Trust
documents. Tommy was adamant that she not benefit
from his estate. The will he executed on December 18,
2016[,] ensured his estate was disposed according to his
purpose.
Plaintiff and Intervenors have provided no
evidence showing Tommy lacked the requisite mental
capacity to execute his will. In fact, the deposition
testimony shows quite the opposite. The evidence shows
Tommy was mentally competent and still running
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Custom Engineering. The testimony establishes that
Tommy knew the objects of his bounty and the character
and value of his estate. It also confirms Tommy had an
estate plan and his will distributed his estate in
accordance with that plan. There is no genuine issue of
material fact concerning Tommy’s mental capacity to
execute a will and Defendants are entitled to judgment as
a matter of law on this issue.
March 22, 2019, Motion for Partial Summary Judgment at 16-19 (citations
omitted). Additionally, defendants argued that no material issue of fact existed as
to whether Tommy’s execution of the 2016 Will and Trust Agreement was the
product of undue influence. In fact, defendants claimed that none of the badges of
undue influence were present:
At the time he executed on his will on December
18, 2016, Tommy was fighting cancer. He had a chemo
appointment the Friday before the will execution.
Kaileen Dep. 114:2-25. But Tommy drove to Evansville
for the appointment. He went in by himself, despite
requests from his granddaughter to go with him. He
walked to the appointment and did not require the
assistance of a wheelchair. He did some Christmas
shopping after the appointment. He went Christmas
shopping again the next day. He may have been taking
treatment for cancer, but he was still running Custom
Engineering. While he was a cancer patient, he did not
have the physical look of one.
Second, Tommy was not mentally impaired. He
was called a genius, McCulloch Aff. ¶ 7; [Dwayne] Dep.
104:19-20; Kaileen Dep. 71:22-72:11; Craig Aff. ¶ 5, and
otherwise recognized for his intelligence. Throughout
her December 15-21[,] 2016[,] visit with her
grandparents, Kaileen unequivocally stated her
grandfather knew the people around him, Kaileen Dep. at
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168:14-17, was having normal conversations with
everyone, id. 168:22-169:3, and continued to do his daily
Sudoku puzzles, id. at 168:18-21. Again, he may have
been taking treatment for cancer, but it never affected his
mind.
Third, the will was not unnatural. There is no “per
se unnatural will.” Fischer v. Heckerman, 772 S.W.2d
642, 646 (Ky. App. 1989). “[N]o will is unnatural in a
legal sense if it is not contrary to the known views or
conceptions of the testator or if it be such as he might
have been expected to make,” Clark v. Johnson, 105
S.W.2d 576, 580 (Ky. 1937). Tommy’s will is not
unnatural.
Tommy’s will made provision for his wife, Freda,
the most natural and primary object of his bounty. He
wanted to protect her from predators and to protect his
estate from any future spouse she may have, so he used a
Trust, with Craig, their son, as Trustee. Freda was aware
and participated in moving assets to the Trust. At
Tommy’s request, Freda and Craig were both present
during the meeting with the attorney. There was
estrangement between Tommy and Aunde [sic] and her
family. Aunde [sic] was not a beneficiary in prior wills
and Tommy’s opinion on that had not changed.
Fourth, the relationship between Tommy and
Freda and Tommy and Craig is neither recent nor short.
Tommy and Freda were married for 47 years.
Craig is Tommy’s son. Contrast this with the brief
relationship at issue in Burke v. Burke, 801 S.W.2d 691(Ky. App. 1990) and Belcher v. Somerville, 413 S.W.2d
620 (Ky. 1967). In Burke, the decedent, Heber, had only
known the beneficiary, Lexie, for approximately two
months prior to executing his will. Burke, 801 S.W.2d at
693-694. In Belcher, Mrs. Belcher had only been serving
as a nurse for the decedent, Ms. Heller, for a little more
than two months before Ms. Heller executed her will.
Belcher, 413 S.W.2d at 622. Here the relationships were
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well over forty years long. Tommy and Freda were
husband and wife. Their lives, their home, their business
– they built it all together. Tommy and Craig were father
and son. Craig worked alongside his father at Custom
Engineering and Tommy was preparing him to take over
the business.
Fifth, there was no participation by any beneficiary
in the preparation of the will. Dianne Blanford clearly
stated she had no discussions with Freda or Craig prior to
the date of executing the documents. Freda and Craig
confirmed this. Freda even reported the meeting with
Dianne was at an inconvenient time for her. Freda and
Craig were present at the meeting prior to executing the
will at Tommy’s request. Freda may have been aware,
participated, and authorized the transfers to the Trust,
Adam Legate Aff. ¶ 13; Milligan Aff. ¶ 5, but she was
not involved in the preparation of the will.
Sixth, the beneficiary did not possess the will. In
fact, Dianne Blanford was in possession of the original
will. The intention was to copy and return, but with the
holidays and Tommy’s sudden death a few days later, the
attorney kept the original will at her Lexington office
until it was probated with the Webster District Court.
Seventh, the beneficiaries, Freda and Craig, did not
restrict contact between Tommy and Aunde [sic] and her
family. Plaintiff and Intervenors own testimony show
Freda and Craig did not restrict contact between them
and Tommy. No one ever prevented Aunde [sic] from
seeing or talking with her father. Kaileen testified no one
ever prevented her or her family from returning to Clay
and retrieving items they left in the house in Clay. In
fact, Tommy even purchased a covered trailer to assist in
moving large items from the home to Alabama. No one
prevented them from visiting Tommy and Freda.
Aundrea, Dwayne, and their children were actually at
Freda and Tommy McCormick’s home for several days
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before and after Tommy McCormick signed his Will on
December 18, 2016.
Eighth, and finally, the beneficiaries, Freda and
Craig, did not have absolute control of Tommy’s
business affairs. Tommy had absolute control of all of
Tommy’s affairs. He was in control of his business at
Custom Engineering, Kaileen Dep. 170:1-6, and in
control of his medical care – controlling even the family
members allowed to accompany him into chemo, id. at
115:1-116:1. He bought his own Christmas presents, id.
at 120:19-20, and was determined to get exactly what he
wanted, id. at 132:9-133:21. Aunde [sic] stated her
father “liked to have control,” Aundrea Dep. 47:15-16,
and continued to be in control, “Because that’s just my
dad. If he didn’t want to go, he wouldn’t have went,” id.
at 48:23-24. Kathryn describes her grandfather as a
strong-willed guy that would speak his mind. She stated,
“He was a man that changed his mind frequently, but
knew what he wanted.” Id. at 17:10-12. Freda says he
“was giving everyone directions,” and “talked to
financial advisors, vendors, employees, and family on a
daily basis up until he died.” Freda Aff. ¶ 33.
March 22, 2019, Motion for Partial Summary Judgment at 21-24 (citations
omitted).
The Towery grandchildren filed a response to the motion for summary
judgment. They argued that summary judgment was improper as to both claims of
undue influence and mental capacity as genuine issues of material fact existed:
[T]he fact that two of Tommy McCormick’s
grandchildren stand to inherit a significant portion of his
estate via their father Craig McCormick. This is much
like the Williams [v. Vollman, 738 S.W.2d 849 (Ky. App.
1987)] case on its face as it is an unnatural and
unequivocal disposition and is evidence in and of itself of
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undue influence. The Williams court went on to hold that
an unequivocal and unnatural disposition by itself is not
enough to show undue influence but when coupled with
slight evidence of exercise of undue influence, it is
sufficient to take the case to the jury. Williams supra,
page 851. The Williams court went on to state: “The
participation by an interested party in the preparation of
the Will is circumstantial evidence tending to prove the
exercise of undue influence. . . . Hence the issue of
undue influence should have been submitted to the jury.”
Williams, page 851.
In this instance Craig McCormick by his own
Affidavit in support of his Motion for Summary
Judgment acknowledges he was in the room with his
father when the documents were executed which have
effectively disinherited the Intervenors. As the Williams
court noted, active participation by an interested party in
preparation of a Will is circumstantial evidence tending
to prove exercise of undue influence.
....
There are many elements of undue influence, one
of which is susceptibility of influence. In this instance, it
is undisputed from the Defendants’ own Affidavits that
Tommy McCormick was fearful as he was fighting
cancer. The second element is the relationships and
existence of a confidential relationship between the
victim and the influencer. In this case, once again Craig
McCormick by his own Affidavit has referenced the fact
that he worked very closely with his father and had the
opportunity to influence him on the decisions of estate
planning that would disinherit his sister’s grandchildren
and his sister. A third crucial element that is often
looked at is the change of the victim’s past plans. In this
instance, it is the Intervenors while contingent
beneficiaries in the 2016 plans where an absolute
beneficiary of the 2011 estate beneficiary plans.
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....
It is undisputed that the Intervenors and [Aundrea
Towery] had an estranged relationship from Tommy
McCormick for a period of time. From Kaileen
Towery’s deposition she indicated the parties were
estranged and did not see [each] other from March 2009
until May 19, 2012. A lot of this arises out of an incident
in which Tommy McCormick assaulted Kaileen Towery,
was arrested and lodged in the Webster County Detention
Center. Thereafter the Towery Family moved to
Alabama and South Africa.
Notwithstanding this period of estrangement
(2009-2012), Tommy McCormick in his 2011 estate
planning documents left the Intervenors a minimum of
$1.5 million total.
Notwithstanding the incident of Tommy
McCormick assaulting Kaileen Towery, the testimony
which is undisputed in this matter is that on December
18, 2016[,] Tommy was in a loving relationship with the
Intervenors, his grandchildren. The Affidavit of Pauline
McCormick in support of the Defendant’s Affidavit dated
March 22, 2019[,] clearly shows that on December 18,
2016[,] Tommy McCormick was in a loving relationship
as Pauline states, “We celebrated Kaileen’s birthday with
a big supper on the evening of Sunday, December 18,
2016.” Pauline confirms that Aundrea was invited to
come to the house and stay during the weekend of
December 16, 2016[,] and everyone came except
Kathryn, who stayed in Alabama to take care of the
family pets.
It is also undisputed that in December, 2016
Tommy McCormick was not at his self [sic] mentally.
Kaileen Towery’s testimony is on Saturday December
17, 2016, the day before the alleged documents were
executed, all he could eat was mashed potatoes.
However, Kaileen Towery does acknowledge that he
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could carry on a sensible conversations [sic] and still
knew who everybody was. There has been no real
dispute that Tommy McCormick knew who everybody
was notwithstanding the allegations of the Defendants in
their Motion.
Even by the Defendants’ own Affidavits in this
matter, it is clear that a Summary Judgment is not
permissible on the issue of mental capacity. The Court
should review the following factors relative to Tommy
McCormick:
• The Freda McCormick Affidavit of March 22,
2019[,] specifically states that on December 16,
2016, prior to the execution of the alleged
documents that Tommy McCormick had a
treatment in Evansville and specifically in
paragraph 33 she acknowledges his treatments
were getting rough.
• The Affidavit of Pauline McCormick dated March
22, 2019[,] likewise states as follows: “My son,
Tommy McCormick, did have some physical
effects of the chemo therapy.” Pauline
McCormick also is very emphatic that everyone
was emotional during this time of his illness and
they knew the cancer was progressing. (Pauline
McCormick Affidavit of March 22, 2019.)
• The deposition of Dr. Anthony W. Stephens which
is in the record and incorporated herein by
reference shows that Tommy McCormick was
taking numerous medications in the time frame of
December, 2016 (Stephens’ deposition, page 64-
116.)
• The deposition of Dr. Anthony W. Stephens which
is filed in the record and incorporated herein by
reference confirms that Tommy McCormick was
seen by Dr. Stephens on Wednesday, December
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14, 2016[,] and took his first chemo treatment
using a port. Dr. Stephens further had Tommy
McCormick receive treatment on Friday,
December 16, 2016[,] and although Dr. Stephens
did not personally see Mr. McCormick on that
date, he did admit that on December 14, 2016[,]
Tommy McCormick was already getting weak and
fatigued, had diarrhea, dehydration and needed
intravenous fluids and was also having nausea,
fatigue and diarrhea on December 28, 2016,
shortly after the documents were allegedly
executed.
• Dr. Stephens is emphatic that Tommy McCormick
knew he had a poor prognosis and the cancer that
re-emerged is not only aggressive but is resistant
and an aggressive cancer will take a harder toll on
a person that a mild form of cancer.
• When Dr. Stephens was asked to confirm Kaileen
Towery’s statement that her grandfather on
December 16, 2016[,] was dehydrated, fatigued,
and had diarrhea, Dr. Stephens stated it is certainly
possible.
• The Affidavit of Kaileen Towery attached as
Exhibit 3 sets forth the numerous problems her
grandfather was having on December 16, 2016[,]
including severe diarrhea, thinking irrationally,
thinking slower, pain, stress and fatigue.
April 23, 2019, Intervenors Response to Defendants’ Motion for Partial Summary
Judgment at 7-11 (citations omitted).
Defendants also filed a motion for summary judgment seeking
dismissal of Aundrea’s and the Towery grandchildren’s claims of tortious
interference with inheritance and civil conspiracy. Defendants pointed out that
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Kentucky has not recognized the tort of interference with inheritance; moreover,
there existed a lack of proof establishing that defendants individually or in concert
engaged in conduct that would constitute tortious interference with inheritance.
And, the defendants filed a separate motion for summary judgment
arguing that no material issue of fact existed that Tommy did, in fact, execute the
2016 Will and Trust Agreement on December 18, 2016. In particular, defendants
point to the following:
(1) S. Dianne Blanford, long-time attorney of Tommy
McCormick, her husband and an attorney, Andrew B.
Cox, Amanda Towery, Craig McCormick and Freda
McCormick were all present and in the presence of
each other when Tommy McCormick executed his
will on December 18, 2016.
(2) Attorney Blanford and her husband traveled to
Western Kentucky to attend a long-standing family
Christmas function and coordinated that trip with the
execution of Tommy McCormick’s Will. Certainly
the coordination of the execution of the documents
with a previously planned trip is not suspicious.
(3) Attorney Blanford’s December 21, 2016[,] letter to
Freda and Tommy McCormick memorializes the
Sunday, December 18, 2016[,] meeting with further
instructions about the execution and funding of the
James T. McCormick & Freda S. McCormick
Irrevocable Family Trust, Craig T. McCormick
Trustee.
(4) Tommy McCormick followed up on the instructions
in Mrs. Blanford’s December 21st letter and executed
the James T. McCormick & Freda S. McCormick
Irrevocable Family Trust on December 29, 2016[,] in
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the presence of Tracy Henry, a United Community
Bank of West Kentucky, Inc. employee.
(5) Upon execution of the December 18, 2016[,] Last
Will and Testament and Trust, Tommy McCormick
immediately communicated with his long-time
financial advisors, Adam Legate and Burl Milligan,
and instructed them to transfer his and Freda
McCormick’s non-qualified assets in their investment
account to the Craig T. McCormick, Trustee of the
James T. McCormick & Freda S. McCormick
Irrevocable Family Trust dated December 18, 2016.
The transfers were completed in late December 2016.
(6) Steve McCulloch’s affidavit that he along with his
wife were at Custom Engineering on December 18,
2016[,] around the time the documents were executed
and saw Tommy McCormick in his office.
(7) Greg Legate’s affidavit that Tommy asked him to
come to Custom Engineering to witness some
documents. Tommy McCormick called him on
December 18, 2016[,] and told him not to come
because “someone’s husband was there” and he did
not need him.
April 18, 2019, Motion for Summary Judgment at 2-4 (citations omitted).
The Towery grandchildren filed a response and argued that material
issues of fact existed that precluded summary judgment as to whether the 2016
Will and Trust Agreement were executed by Tommy. The Towery grandchildren
point to the depositional testimony of Kaileen, Aundrea, and expert witness,
Sharon Hampton. According to the Towery grandchildren, Kaileen averred that
she was with Tommy on December 18, 2016, at the time (11:00 a.m.-12:30 p.m.)
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the 2016 Will and Trust Agreement were purportedly executed; however, Kaileen
stated that Tommy was home during such time period and could not have signed
the 2016 Will and Trust Agreement. The Towery grandchildren also cite to
Aundrea’s depositional testimony. Aundrea stated that she was also with Tommy
during the time period he was purportedly executing the will and that he never left
his home during such time. Additionally, Hampton, a document examiner, opined
that the signatures on the 2016 Will and Trust Agreement that were allegedly
Tommy’s were not his signatures but were forgeries. Taken together, the Towery
grandchildren maintained that material issues of fact were presented that precluded
summary judgment.
By order entered May 23, 2019, the circuit court determined that
defendants were entitled to partial summary judgment upon the claims of undue
influence and mental capacity. As to undue influence, the circuit court concluded:
None of the eight badges of undue influence are
present in this case. Tommy was not unduly influenced
in the execution of his will. When he executed his will,
he was exercising his own judgment and his will is in
accordance with his wishes. Plaintiff and Intervenors
have not even “slight” evidence to show Tommy was
unduly influenced in creating his will.
Taking the evidence of record in the most
favorable light to the Intervenors, this Court cannot find
that any of the eight badges of undue influence are
present. The Court agrees the Intervenors have presented
insufficient evidence that Craig or Freda participated in
any way in the preparation of Tommy’s will, even
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“slight” evidence. Based on the cases submitted by the
Intervenors, their mere presence at the time of execution
in of itself is insufficient to give rise to a claim of undue
influence. They state that Craig “had the opportunity” to
influence Tommy because of their close working
relationship but offer no specific facts or instances to
support that claim. Everyone, including the Intervenors,
[Aundrea] and Dwayne, testified that Tommy was not
easily influenced by anyone. They have presented no
evidence either of them ever had the will in their
possession. The fact that [Aundrea] was not listed as a
beneficiary is not compelling as she had never been listed
as a beneficiary in any of Tommy’s estate documents.
While Tommy did change the bequests to the Intervenors
in the 2016 Will, he was aware of his relationship with
them. . . . The Court finds the Intervenors (and the
Plaintiff) have provided insufficient, insubstantial and not
even slight evidence to show Tommy was unduly
influenced in creating his will and therefore finds there
are no genuine issues of material facts on this issue.
May 23, 2019, Order on Partial Summary Judgment at 20-21.
As to mental capacity, the circuit court decided:
The Intervenors (and Plaintiff) have the burden to
show Tommy lacked testamentary capacity. This
requires substantial proof, not remote or speculative
evidence. Reviewing the facts in the most favorable light
possible to the Intervenors, the Court can find no
“substantial evidence” (or even slight) of lack of mental
capacity or undue influence. The Court has reviewed and
re-reviewed the depositions of [Aundrea], Dwayne,
Kaileen and Kathryn Towery. Pertinent portions of their
depositions have been set out above. In summary, they
all testified that Tommy knew everyone around him and
was able to carry on conversations; that he was still
running Custom Engineering – he was “the Boss” and
everyone knew it; that he continued to drive himself,
make his own decisions and, even purchased a gun the
-26-
day prior to the 2016 Will, and he worked his puzzles.
Their description of Tommy’s deterioration in support of
their claim of lack of capacity involved physical
complications of his cancer and treatment rather than
mental incompetency, i.e., his lack of appetite, fatigue,
and diarrhea. The Intervenors offer no medical evidence
in opposition to Tommy’s treating physician, Dr.
Stephens, who testified that Tommy was competent up to
the last time he saw him in December 2016. Dwayne
Towery, once [an] EMT and paramedic, testified that
Tommy never looked like a “cancer patient – never lost
his color.” (D. Towery Depo. p. 93) The Intervenors
claim Tommy was taking heavy pain medication around
the time of the execution of the December 18, 2016 will
but produced no evidence of same or what, if any effects
it had upon him. Being physically incapacitated does not
render one incompetent for purposes of executing one’s
will. As has been stated above, the requisites of mental
capacity for executing a will are minimal.[]
Plaintiff and Intervenors have provided no
evidence showing Tommy lacked the requisite mental
capacity to execute his will. In fact, the deposition
testimony shows quite the opposite. The evidence of
record shows Tommy was mentally competent and still
running Custom Engineering. The testimony establishes
that Tommy knew the objects of his bounty and the
character and value of his estate. It also confirms
Tommy had an estate plan and his will distributed his
estate in accordance with that plan. There is no genuine
issue of material fact concerning Tommy’s mental
capacity to execute a will and Defendants are entitled to
judgment as a matter of law on this issue.
May 23, 2019, Order on Partial Summary Judgment at 39-40.
The circuit court also granted defendants’ motion for summary
judgment upon the issue of whether Tommy had, in fact, executed the 2016 Will
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and Trust Agreement. The circuit court believed that the Towery grandchildren’s
allegations failed to create a genuine issue of material fact:
From a review of the record, the Court finds the
Intervenors have not presented any affirmative evidence
showing the existence of a genuine issue of material fact
for trial; rather, they have only submitted their own
affidavits relying on their own claims that the signatures
on the 2016 Will and Trust are not James T.
McCormick’s. Further, the Court finds that the
testimony of the Plaintiff and Intervenor, Kaileen
Towery, that they were with James T. McCormick during
the period of time that he was reportedly executing his
Will and Trust is not sufficient to overcome the
unimpeached testimony of two attesting witnesses, an
attorney and two eyewitnesses that were present when
the decedent signed the questioned document.
Intervenors have not provided the Court with any
significant evidence demonstrating the existence of a
genuine issue of material fact. The Court further finds
that due to the absence of any evidence, other than the
statements of the Plaintiff and Intervenors, and the
subsequent actions taken by James T. McCormick in
which he followed up on the instructions given to him
in a letter dated December 21, 2016[,] memorializing the
events of December 18, 2016[,] by way of executing the
James T. McCormick and Freda S. McCormick
Irrevocable Family Trust on December 29, 2016,
Defendants’ argument that James T. McCormick signed
the 2016 Will and Trust on December 18, 2016[,] in the
presence of the aforementioned witnesses is only
strengthened. Lastly, the Court finds the testimony of
Sharon Rose Hampton, Intervenors’ document examiner,
regarding her opinion on the genuineness of James T.
McCormick’s signature is not sufficient in this case to
support the argument the will was forged due to the fact
there is unimpeached eyewitness testimony and the
signing of the will was made under circumstances that
are not suspicious. Although Ms. Hampton has been
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found qualified to testify, due to the Court’s findings
herein, her testimony is rendered moot. The Court finds
it is impossible for the Intervenors to produce evidence at
trial warranting judgment in their favor, and based on the
summary judgment standard set forth above, there are no
genuine issues of material fact exist[ing] between the
parties.
May 31, 2019, Amended Order at 10-11.
And, the circuit court rendered summary judgment dismissing
Aundrea’s and the Towery grandchildren’s claims of tortious interference with
inheritance and civil conspiracy. In so doing, the circuit court pointed out that
Kentucky has not recognized the claim of tortious interference with inheritance.
The parties filed motions to amend or to vacate the orders granting
defendants summary judgment. By order entered September 12, 2019, the circuit
court corrected clerical errors but denied the motion to amend or vacate on other
grounds.
The Towery grandchildren filed a notice of appeal (Appeal No. 2019-
CA-1551-MR), Aundrea filed a notice of appeal (Appeal No. 2019-CA-1552-MR),
and defendants filed a notice of cross-appeal (Cross-Appeal No. 2019-CA-1576-
MR) in the Court of Appeals. We will address each appeal seriatim.
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APPEAL NO. 2019-CA-1551-MR
1. Testamentary Capacity
The Towery grandchildren contend that the circuit court erroneously
rendered summary judgment upon the issue of Tommy’s testamentary capacity to
execute the 2016 Will. The Towery grandchildren point out that Tommy was
undergoing chemotherapy for cancer at the time the will was executed on
December 18, 2016. Citing to the affidavits of Freda and Tommy’s mother,
Pauline, the Towery grandchildren stress that Tommy was experiencing physical
side effects from the treatments, including diarrhea, nausea, fatigue, weakness, and
dehydration. Additionally, the Towery grandchildren cite the depositional
testimony of Tommy’s treating physician, Dr. Anthony Stephens, who stated that
Tommy was aware of his poor prognosis and was taking numerous medications.
The Towery grandchildren also point out that Tommy received chemotherapy on
December 16, 2016, two days before he allegedly executed the 2016 Will and
Trust Agreement. The Towery grandchildren also rely upon Kaileen’s depositional
testimony that Tommy was tired, was in severe pain, experienced diarrhea, and
worked his Sudoku puzzles slower than usual during her visit in December 2016.
Taken together, the Towery grandchildren maintain that material issues of fact
exist as to Tommy’s testamentary capacity to execute the 2016 Will, thus
precluding entry of summary judgment.
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Summary judgment is proper where there exists no genuine issue of
material fact and movant is entitled to judgment as a matter of law. Steelvest, Inc.
v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Kentucky Rules of
Civil Procedure (CR) 56.03. All facts and inferences therefrom are to be viewed in
a light most favorable to the nonmoving party. Steelvest, Inc., 807 S.W.2d 476.
Effectively, our review in this case is de novo. Cmty. Fin. Servs. Bank v. Stamper,
586 S.W.3d 737, 741 (Ky. 2019). Our review proceeds accordingly.
It is well-established that to validly execute a will, the testator must
possess testamentary capacity. Getty v. Getty, 581 S.W.3d 548, 554 (Ky. 2019).
As to testamentary capacity, the Kentucky Supreme Court has meticulously set
forth the law as follows:
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. Williams v. Vollman, 738 S.W.2d
849 (Ky. App. 1987); Taylor v. Kennedy, 700 S.W.2d
415, 416 (Ky. App. 1985). Testamentary capacity is only
relevant at the time of execution of a will. New v.
Creamer, 275 S.W.2d 918 (Ky. App. 1955). . . .
“Kentucky is committed to the doctrine of
testatorial absolutism.” J. Merritt, 1 Ky. Prac.-Probate
Practice & Procedure, § 367 (Merritt 2d ed. West 1984).
See New v. Creamer, 275 S.W.2d 918 (Ky. 1955);
Jackson’s Ex’r v. Semones, 98 S.W.2d 505 (Ky. [1936]).
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
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speculative evidence. American National Bank & Trust
Co. v. Penner, 444 S.W.2d 751 (Ky. 1969). The degree
of mental capacity required to make a will is minimal.
Nance v. Veazey, 312 S.W.2d 350, 354 (Ky. 1958). The
minimum level of mental capacity required to make a
will is less than that necessary to make a deed, Creason
v. Creason, 392 S.W.2d 69 (Ky. 1965), or a contract.
Warnick v. Childers, 282 S.W.2d 608 (Ky. 1955).
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. Adams v. Calia, 433 S.W.2d 661(Ky. 1968); Waggener v. General Ass’n of Baptists, Ky.,
306 S.W.2d 271 (1957); Burke v. Burke, 801 S.W.2d 691(Ky. App. 1990); Fischer v. Heckerman, 772 S.W.2d 642(Ky. App. 1989). 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. Ward v. Norton, 385 S.W.2d 193 (Ky.
1964). “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 and propriety.” Burke v. Burke, 801 S.W.2d 691,
693 (Ky. App. [1990]) (citing Cecil’s Ex’rs. v. Anhier,
195 S.W. 837, 846 (Ky. 1917)).
Bye v. Mattingly, 975 S.W.2d 451, 454-56 (Ky. 1998).
To establish Tommy’s lack of testamentary capacity, the Towery
grandchildren point to Tommy’s physical ailments (weakness, fatigue, diarrhea,
nausea, pain, and dehydration), Tommy’s inability to complete Sudoku puzzles as
fast as he once did, Tommy’s prescription medications (including pain medicine),
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Tommy’s poor prognosis, and aggressive cancer. However, none of the above
facts demonstrate that Tommy lacked the testamentary capacity to execute the
2016 Will. Rather, the evidence uncontrovertibly established that Tommy
possessed testamentary capacity to execute the 2016 Will.
The depositional testimony of both Kaileen and Aundrea affirm that
Tommy knew and normally conversed with members of his extended family the
day of and in the days before executing the 2016 Will. It was undisputed that
Tommy contacted his attorney about the 2016 Will and Trust and dictated the
terms thereof to her. Additionally, it is uncontroverted that Tommy was still
working at Custom Engineering, was driving himself to chemotherapy treatments,
and was shopping for Christmas presents in the days before executing the 2016
Will. Tommy’s treating physician, Dr. Stephens, also testified that Tommy was
mentally competent. After the 2016 Will and Trust Agreement were executed,
Tommy had numerous assets transferred to the Trust.
The fact that Tommy was suffering from cancer and enduring the
effects of its treatment does not disqualify him from executing a will. The Towery
grandchildren have failed to introduce facts demonstrating that Tommy did not
know his obligations to them, did not know his estate and its value, and did not
dispose of his estate according to his wishes. See Bye, 975 S.W.2d at 456. We are
mindful that our “courts guard [z]ealously the rights of all rational people,
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including the aged, the infirm, the forgetful . . . , to make wills sufficient to
withstand the attacks of those left out and those dissatisfied with the expressed
desires of the departed, and this is still true where one child has been left out and
all the other children remembered with benefits under the will.” Ky. Trust Co. v.
Gore, 192 S.W.2d 749, 752-53 (Ky. 1946). Accordingly, we conclude that the
circuit court properly rendered summary judgment upon Tommy’s testamentary
capacity.
2. Undue Influence
The Towery grandchildren assert that the circuit court erroneously
rendered summary judgment upon the issue of undue influence. The Towery
grandchildren believe that issues of material fact preclude entry of summary
judgment. Specifically, the Towery grandchildren point out that Craig was present
when the 2016 Will and Trust Agreement were executed, which demonstrates
Craig’s participation in preparation of the 2016 Will and Trust Agreement. The
Towery grandchildren also cite to the affidavits of Freda and Craig, who averred
that Tommy was fearful of fighting cancer. The Towery grandchildren assert that
Craig worked closely with Tommy and “had the opportunity to influence him
[Tommy] on the decisions of Estate planning that would disinherit his sister’s
grandchildren and his sister.” Towery grandchildren’s Brief at 11. Additionally,
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the Towery grandchildren emphasize that under Tommy’s prior 2011 Will and
Trust, they stood to inherit a minimum of $1,500,000.
It is recognized that “[u]ndue influence is a level of persuasion which
destroys the testator’s free will and replaces it with the desires of the influencer.”
Bye, 975 S.W.2d at 457. Undue influence is said to be inappropriate influence
(threats, coercion, and similar acts) that operates to destroy the free will of the
testator. Id. To demine if undue influence is present, the court must consider the
following badges of undue influence:
[A] physically weak and mentally impaired testator, a
will which is unnatural in its provisions, a recently
developed and comparatively short period of close
relationship between the testator and principal
beneficiary, participation by the principal beneficiary in
the preparation of the will, possession of the will by the
principal beneficiary after it was reduced to writing,
efforts by the principal beneficiary to restrict contacts
between the testator and the natural objects of his bounty,
and absolute control of testator’s business affairs.
Bye, 975 S.W.2d at 457.
In this case, there was no evidence presented that Craig or anyone else
threatened or coerced Tommy. In fact, it was undisputed that Tommy was a
strong-willed individual who never did anything he did not want to do. Although
there was evidence that Tommy was fatigued and to some extent physically weak,
it was undisputed that Tommy still drove, went to work at Custom Engineering,
and shopped for Christmas presents during the relevant time period.
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Although the Towery grandchildren claim the 2016 Will and Trust
Agreement are unnatural, we are unable to agree. It is uncontroverted that Tommy
wanted to provide for his wife, Freda, and wanted to protect her after his death. To
effectuate his desires, Tommy placed the majority of his estate into trust for the
benefit of Freda with Craig serving as trustee. Tommy devised his shares in
Custom Engineering to Craig, as Craig had worked there his entire life.
Additionally, there is no dispute that Tommy had been estranged from Aundrea
even though they had reconciled.2
And, it cannot be said that Craig’s and Freda’s relationship with
Tommy was short. Rather, Tommy and Freda had been married some 47 years.
Craig was Tommy’s son, and he had worked with Tommy at Custom Engineering.
The Towery grandchildren point out Craig was present when Tommy
executed the 2016 Will and Trust Agreement. It is true that Craig was present;
however, it is undisputed that Tommy requested Craig’s presence that day and that
Tommy signed the Trust Agreement as trustee. Freda was also present that day at
the request of Tommy. Although both Craig and Freda were present for the
execution, the evidence is uncontroverted that Tommy alone contacted his attorney
and dictated the terms of the 2016 Will and Trust Agreement.
2
In an Affidavit, Freda McCormick stated that she and Tommy suspected that Aundrea Towery
had been using illegal drugs. Freda also stated that she and Tommy were upset with Aundrea for
her failure to seek or maintain employment.
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As to possession of the will, it is undisputed that Tommy’s attorney
had possession thereof, and there is no evidence that Freda or Craig attempted to
restrict contact between Tommy and the Towery grandchildren or Aundrea.
Finally, there is again no evidence that either Freda or Craig controlled Tommy’s
business affairs.
From our above analysis, we agree with the circuit court that no
genuine issue of material fact existed as to undue influence and that summary
judgment was properly rendered.
3. Tortious Interference with Inheritance
The Towery grandchildren maintain that the circuit court erroneously
rendered summery judgment upon the claim of tortious interference with
inheritance. We disagree.
In its summary judgment, the circuit court observed that Kentucky
does not recognize the tort of interference with inheritance. The circuit court was
correct. And, we decline to do so now. As a consequence, the court properly
rendered summary judgment dismissing the tortious interference with inheritance
claim.
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APPEAL NO. 2019-CA-1552-MR
1. Standing – Waiver
Aundrea contends that the circuit court erred by granting defendants’
motion to dismiss her complaint for lack of standing to challenge the 2016 Will.
Aundrea points out that defendants raised the defense of lack of standing in a
motion to dismiss for failure to state a claim under CR 12.02. According to
Aundrea, the motion to dismiss was only filed after Aundrea filed her amended
complaint even though the defense of lack of standing existed at the time the
original complaint was filed. As the defense of lack of standing was available after
the original complaint was filed, Aundrea maintains that defendants waived the
defense by not raising it in response to the original complaint.
To begin, defendants filed a motion to dismiss for failure to state a
claim upon which relief could be granted under CR 12.02. Thereunder, a motion
to dismiss is only granted if it appears the pleading party would not be entitled to
relief under any facts that could be proved to support the claim. McBrearty v. Ky.
Cmty. & Tech. Coll. Sys., 262 S.W.3d 205, 211 (Ky. App. 2008).
In Kentucky, our Supreme Court has recognized that generally “only
defenses which were not available in the first answer would be allowed in an
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answer to an amended complaint.” United Bhd. of Carpenters v. Birchwood
Conservancy, 454 S.W.3d 837, 842 (Ky. 2014).3
Here, it is undisputed that the defense of lack of standing was
available to defendants after the original complaint was filed and could have been
raised in their original answer. While it is true that defendants generally raised the
defense of dismissal for failure to state a claim in their original answer, it is,
nevertheless, evident that defendants failed to particularly set forth any defenses as
to lack of standing in the original answer. Rather, defendants only raised the
defense of lack of standing in a motion to dismiss after the second amended
complaint was filed. Under United Brotherhood of Carpenters, 454 S.W.3d at
842, we conclude that defendants waived the defense of lack of standing by failing
to raise it after the original complaint was filed. We, thus, hold that the circuit
court committed reversible error by determining that Aundrea lacked standing to
challenge the 2016 Will. As a consequence, we reverse the circuit court’s order of
dismissal based upon Aundrea’s lack of standing and remand for proceedings
consistent with this Opinion. This Opinion takes no position on any claims
asserted by Aundrea in regards to the will other than what is discussed below.
3
In United Brotherhood of Carpenters v. Birchwood Conservancy, 454 S.W.3d 837, 842 (Ky.
2014), the defenses at issue were lack of capacity to be sued and/or lack of standing.
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2. Tortious Interference with Contract
Aundrea also argues that the circuit court erred by rendering summary
judgment dismissing her claim for tortious interference with contract. In the
companion appeal (Appeal No. 2019-CA-1551-MR) filed by the Towery
grandchildren, we held that the circuit court properly dismissed the claim based
upon tortious interference with inheritance as Kentucky does not recognize the tort.
For this reason, we, likewise, view Aundrea’s argument to be without merit and
conclude the circuit court did not err by rendering summary judgment dismissing
the claim of tortious interference with contract.
We view any remaining contentions of error to be moot or without
merit.
CROSS-APPEAL NO. 2019-CA-1576-MR
1. Expert Opinion
Appellees/Cross-Appellants (appellees) assert that the circuit court
erred by denying their motion to exclude the expert opinion of Sharon Rose
Hampton. Appellees state that Aundrea and the Towery grandchildren sought to
rely upon the expert opinion of Hampton, a document examiner, who opined that
the signature on the 2016 Will and Trust Agreement was not Tommy’s signature.
Appellees claim that Hampton is not qualified to render an expert opinion and her
depositional testimony is not supported by reliable methods. In particular,
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appellees maintain that Hampton does not meet the basic training requirements of a
document examiner and her opinion is unreliable because she failed to examine the
original 2016 Will.
Kentucky Rules of Evidence (KRE) 702 is related to admissibility of
expert opinion testimony:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
And, the Kentucky Supreme Court has set forth our standard of review:
In making the decision to admit or exclude expert
testimony under Daubert [v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993),] the trial court must decide
whether the testimony is reliable, a factual determination,
and whether the testimony will assist the trier of fact in
understanding or determining a fact in issue, an
admissibility determination. Miller v. Eldridge, 146
S.W.3d 909, 915 (Ky. 2004). These two decisions are
reviewed under different standards. Id. We review the
trial court’s factual findings regarding reliability for clear
error, while we review the trial court’s decision regarding
admissibility for abuse of discretion. Id. A factual
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finding is clearly erroneous if it is not supported by
“‘evidence of substance and relevant consequence having
the fitness to induce conviction in the minds of
reasonable [persons].’” City of Fort Thomas v.
Cincinnati Enquirer, 406 S.W.3d 842, 854 (Ky. 2013)
(citing Owens-Corning Fiberglas Corporation v.
Golightly, 976 S.W.2d 409, 414 (Ky. 1998)). However, a
trial court abuses its discretion only if its decision “‘was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.’” Miller, 146 S.W.3d at 914 (footnote
omitted).
Oliphant v. Ries, 460 S.W.3d 889, 897 (Ky. 2015).
In determining that Hampton qualified as an expert in document
examination, the circuit court determined:
The Court has thoroughly reviewed Ms.
Hampton’s resume and certification records. Regarding
Ms. Hampton’s qualifications, the Rules of Evidence do
not require a four-year degree. Ms. Hampton testified
that she has been unable to be certified by the American
Board of Forensic Document Examiners due to her only
having received an associate degree and not a bachelor’s
degree. Mr. Sperry admitted there are document
examiners out there that do not have a four-year degree
that have been accepted by the Court. Mr. Sperry further
testified that not having a four-year degree would not
disqualify anyone from testifying in and of itself and that
an individual could have a four-year degree in “basket-
weaving” but if they do not have the training for the two-
year period of time, then they do not meet the standards.
Mr. Sperry admitted there are no state certifying bodies
in any state that certify forensic document examiners.
Regarding Ms. Hampton’s methodology, Ms. Hampton
admitted that she did not examine the original will in this
case. However, Mr. Sperry admitted that not examining
the original is not an error in and of itself because “we
deal with copies all of the time.” Mr. Sperry did not take
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issue with the number of documents Ms. Hampton
reviewed in this case and when asked if he uses the same
techniques and methodology she listed in her affidavit in
assessing whether a signature is genuine, Mr. Sperry
responded “all of those things we use.”
May 23, 2019, Order at 9-10.
Upon the whole, we do not believe the circuit court’s finding that
Hampton’s expert opinion was reliable to be clearly erroneous or admission of
Hampton’s expert opinion to be an abuse of discretion. See id. In short, we are of
the opinion that the circuit court did not commit reversible error by denying
appellees’ motion to exclude Hampton’s expert opinion.
2. Effect of Reversal
Appellees’ last argument on cross-appeal is somewhat unusual.
Specifically, they argue:
Should this Court overturn the Webster Circuit
Court’s Order on standing, [Aundrea]’s will contest
claims nonetheless fail because they are factually
unsupportable. Although the Circuit Court held early in
the case that [Aundrea] had no standing to pursue her
will contest claims, she and her counsel continued to
fully and actively participate in the case because of her
other claims. After full discovery, the Webster Circuit
Court granted the McCormicks Summary Judgment on
all will contest claims. But the Circuit Court then abused
its discretion in partially granting [Aundrea]’s motion to
amend, holding that Summary Judgment do [sic] not
apply to [Aundrea]. There is no genuine dispute of
material fact so, as a matter of law, the will contest
claims cannot proceed. It would be a waste of judicial
resources and case unnecessary and unwarranted delay to
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return to the Circuit Court when [Aundrea] has already
had the opportunity to present evidence in support of her
claims and has failed to do so.
....
In short, regardless of who is bringing the will
contest claims – [Aundrea] or her children – the evidence
remains the same. [Aundrea] did not argue that with
additional time or opportunity she would or could have
submitted different or additional evidence. There are no
genuine issues of material fact that Tommy had the
requisite mental capacity to execute in 2016 Will, that
Tommy was not unduly influenced, and that Tommy
validly signed and executed his 2016 Last Will.
January 22, 2021, Combined Brief for Appellees/Cross-Appellants at 21-22
(footnote and citation omitted).
This Court is an appellate body, and our task is to review errors
committed by lower courts. The circuit court has not ruled upon Aundrea’s will
contest claims, and as a result, it is premature and improper for this Court to do so.
See Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009).
For the foregoing reasons, we affirm Appeal No. 2019-CA-1551-MR
and affirm in part, reverse in part, and remand Appeal No. 2019-CA-1552-MR for
proceedings consistent with this Opinion. We also affirm Cross-Appeal No. 2019-
CA-1576-MR.
ALL CONCUR.
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BRIEFS FOR APPELLANTS/ BRIEF FOR APPELLEES/CROSS-
CROSS-APPELLEES KATHRYN APPELLANTS CRAIG T.
TOWERY, KAILEEN TOWERY, McCORMICK, IN HIS CAPACITY
AND DWAYNE A. TOWERY, AS AS EXECUTOR OF THE ESTATE
NEXT-OF-FRIEND OF KOLBY OF JAMES T. McCORMICK,
TOWERY: DECEASED; CRAIG T.
McCORMICK, AS TRUSTEE OF
J. Keith Cartwright THE JAMES T. McCORMICK
Madisonville, Kentucky REVOCABLE LIVING TRUST;
CRAIG T. McCORMICK,
BRIEFS FOR APPELLANT INDIVIDUALLY; FREDA S.
AUNDREA L. TOWERY: McCORMICK, INDIVIDUALLY;
AND ALLISON McCORMICK,
Lara R. Hunt INDIVIDUALLY:
Madisonville, Kentucky
Brucie W. Moore
Daniel N. Thomas Megan Randolph
Hopkinsville, Kentucky Morganfield, Kentucky
Kevin C. Burke
Jamie K. Neal
Louisville, Kentucky
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