Juanita Whitis v. Virgil Leo Meece in His Capacity as to the Estate of Nellie Meece ( 2021 )

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0695-MR
JUANITA WHITIS AND
TAMMY THOMPSON APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT
v. HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 15-CI-01259
VIRGIL LEO MEECE, IN HIS
CAPACITY AS EXECUTOR TO
THE ESTATE OF NELLIE MEECE;
VIRGIL LEO MEECE, INDIVIDUALLY;
SANDRA CURRENT, HEIR OF
NELLIE MEECE; DENISE HARGIS,
HEIR OF NELLIE MEECE;
DAVID L. WHITIS, HEIR OF
NELLIE MEECE; TERRY CHANEY,
HEIR OF NELLIE MEECE; AND GARY
WHITIS, HEIR OF NELLIE MEECE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Juanita Whitis and Tammy Thompson bring this appeal from
an April 1, 2019, Trial Order and Judgment of the Pulaski Circuit Court. We
affirm.
Nellie Meece was born in 1919 and passed away on October 14, 2014.
Nellie had four children – Juanita Whitis, Virgil Leo Meece (Leo), Joyce Hargis,
and Betty Whitis. Juanita and Leo were Nellie’s only surviving children at the
time of her death. It is undisputed that Nellie was suffering from dementia when
she passed away.
In the Pulaski District Court (Action No. 14-P-00540) on November
20, 2014, the court admitted into probate the Last Will and Testament of Nellie
executed on July 20, 2011. Pursuant to the terms of the July 2011 Will, the court
appointed Leo as executor.
Thereafter, on December 23, 2015, Juanita and Tammy Thompson
(daughter of Betty Whitis) filed a petition in the Pulaski Circuit Court (Action No.
15-CI-01259) against Leo, in his capacity as executor of the estate of Nellie, in his
capacity as attorney-in-fact for Nellie, and as beneficiary of Nellie. Additionally,
Juanita and Tammy named Sandra Current, Denise Hargis, David Whitis, Terry
Chaney, and Gary Whitis as respondents. These respondents were grandchildren
of Nellie. In the petition, Juanita and Tammy claimed that Nellie lacked
testamentary capacity to execute the July 2011 Will, that Leo exercised undue
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influence over Nellie at the time of execution of the Will, and that Leo breached
his fiduciary duty to Nellie while acting as her attorney-in-fact. Juanita and
Tammy also sought the removal of Leo as executor based upon a conflict of
interest.
In the probate action (14-P-00540), a “lost will” of Nellie’s was
discovered. The lost will was executed by Nellie on September 2, 2011, and it was
admitted into probate by the district court on August 1, 2017. As with the July
2011 Will, Leo was named as executor in the September 2011 Will.
As a result, Juanita and Tammy filed an amended petition in the
circuit court (Action No. 15-CI-01259) on September 29, 2017. Therein, Juanita
and Tammy alleged that: Nellie lacked testamentary capacity to execute the
September 2011 Will, Leo exercised undue influence over Nellie at the time Nellie
executed the Will, and Leo breached his fiduciary duty to Nellie while acting as
her attorney-in-fact.
In the circuit court action, a jury trial eventually ensued in March of
2019, and the circuit court granted Leo’s motion for directed verdict upon the
undue influence claim, breach of fiduciary duty claim, and the punitive damages
claim. The circuit court also denied Juanita’s and Tammy’s motion to amend the
pleadings to assert a claim of intentional interference with an inheritance or gift.
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The jury returned a verdict finding that Nellie was of sound mind when she signed
the September 2011 Will. This appeal follows.
Juanita and Tammy contend the circuit court erred by denying their
motion to amend the pleadings to assert a claim of intentional interference with an
inheritance or gift against Leo. Although this tort has not been recognized in
Kentucky, Juanita and Tammy argue that the Kentucky Court of Appeals has
authority to recognize this new tort and urges this Court to do so. Additionally,
Juanita and Tammy maintain that Leo would not suffer prejudice as the facts
underlying this tort were “well known” to Leo. Appellants’ Brief at 17.
The tort of intentional interference with inheritance or gift is set forth
in RESTATEMENT (SECOND) OF TORTS § 774B (1979). This tort has never been
expressly recognized in Kentucky, and we decline to recognize it herein.1 To do so
would be a substantial change in our jurisprudence in Kentucky and could be
construed to interfere with the legislative scheme set out in Kentucky Revised
Statutes Chapters 394, 395 and 396. Such a change would be better left to the
sound discretion of the Kentucky Supreme Court. See Supreme Court Rule
1.040(5). Consequently, we conclude that the circuit court did not err by denying
Juanita and Tammy’s motion to amend the pleadings to conform with the evidence.
1
We point out that the Court of Appeals may recognize new torts for the first time. See Presnell
Constr. Managers v. E.H. Constr., LLC, 134 S.W.3d 575, 581 (Ky. 2004); McDonald’s Corp. v.
Ogborn, 309 S.W.3d 274, 291 (Ky. App. 2009).
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Juanita and Tammy next maintain that the circuit court improperly
granted a directed verdict upon the claim of undue influence. In particular, Juanita
and Tammy assert that they introduced sufficient evidence of undue influence to
create a jury issue. According to Juanita and Tammy, the evidence was:
(1) [Nellie] suffered from dementia, with symptoms as
early as 2005, and certainly by 2010; (2) Leo knew about
the 2008 Will as he wrote the notes for it for the attorney,
and thus knew of the favoritism in that Will to Juanita’s
family; (3) Leo knew that his mother had forgotten about
the 1970 deed of the land to him, and kept quiet about it
even though he knew she was attempting to devise that
land, initially to one of Juanita’s daughters and son-in-
law, and later to him; (4) in 2011, when medical records
indicate Nellie Meece was experiencing memory loss,
confusion, agitation and even hallucinations, her son took
her to an attorney on two occasions to do new Wills, and
a new Power of Attorney without Juanita’s knowledge or
involvement; (5) Leo had possession of at least one of the
2011 Wills; (6) Leo became the Power of Attorney for
his mother at the same time the September 2011 Will was
signed; (7) the joint title to a vehicle between Nellie
Meece and Juanita was changed to be just in Nellie
Meece’s name between July and September, 2011
Wills[;] (8) the 2011 Wills demonstrate a lack of
knowledge of her bounty and an unequal disposition
primarily favoring only one object of her bounty, without
any explanation; (9) in January of 2011, a $47,000
Certificate of Deposit was changed from being in
survivorship with Juanita to being in survivorship with
Leo, despite the fact that Nellie had personally set up the
CD in survivorship with Juanita at a time when she had
been making approximately equal gifts of money and
property to her surviving children; (10) the only time that
Nellie Meece signed the entry card to her lock box
between 2006 and 2011 was the day Leo obtained and
cashed a CD jointly titled with him; (11) Leo used his
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Power of Attorney to cash the other CDs, including ones
held jointly with Joyce and Juanita, and placed them in
the estate account, even though the money was not
needed for Mrs. Meece’s care; (12) Nellie Meece’s
ignorance of her bounty was demonstrated by (a) her
reference to an 18[-]acre tract “obtained from Feldman
Lumber Company”; (b) a reference to “Marvin
Whitaker” property, which not only was not hers to
devise, but also would have been referred to by her as the
“Smotherman” tract; (c) a reference to a 23.04 tract
which she had already conveyed to Leo in 1970, and (d)
reference to “livestock” which she had not had in many
years; (13) the testimony that Nellie Meece was mad at
Juanita because of disputes with Leo seems most likely to
have been the result of tales carried to Nellie from Leo;
(14) regardless there was no evidence of [Nellie] being
mad at Joyce or other family members.
Appellants’ Brief at 11-13.
A directed verdict is proper only when drawing all inferences from the
evidence in favor of the nonmoving party, a reasonable juror could only conclude
that the moving party was entitled to judgment. Kentucky Rules of Civil
Procedure (CR) 50.01; Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 775
(Ky. App. 2000).
To invalidate a will based upon undue influence, it must be
demonstrated that undue influence was at “a level of persuasion which destroys the
testator’s free will and replaces it with the desires of the influencer.” Bye v.
Mattingly, 975 S.W.2d 451, 457 (Ky. 1998) (citations omitted). The Kentucky
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Supreme Court has recently set forth the legal framework to determine when a will
is to be invalidated based upon undue influence:
In discerning whether influence on a given testator is
“undue”, courts must examine both the nature and the
extent of the influence. First, the influence must be of a
type which is inappropriate. Influence from acts of
kindness, appeals to feeling, or arguments addressed to
the understanding of the testator are permissible.
Influence from threats, coercion and the like are improper
and not permitted by the law. Second, the influence must
be of a level that vitiates the testator’s own free will so
that the testator is disposing of her property in a manner
that she would otherwise refuse to do. The essence of
this inquiry is whether the testator is exercising her own
judgment.
In addition to demonstrating that undue influence
was exercised upon the testator, a contestant must also
show influence prior to or during the execution of the
will. Undue influence exercised after the execution of
the will has no bearing whatsoever upon whether the
testator disposed of her property according to her own
wishes.
The influence must operate upon the testator at the
execution of the will. If the influence did not affect the
testator, then such conduct is irrelevant. However, even
if the influence occurred many years prior to the
execution of the will, but operates upon the testator at the
time of execution, it is improper and will render the will
null and void.
To determine whether a will reflects the wishes of
the testator, the court must examine the indicia or badges
of undue influence. Such badges include 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
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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.
....
When a contestant seeks to claim that undue
influence was employed upon a testator, the burden is
upon the contestant to demonstrate the existence and
effect of the influence. Merely demonstrating that the
opportunity to exert such influence [existed] is not
sufficient to sustain the burden of proof. When undue
influence and a mentally impaired testator are both
alleged and the mental impairment of the testator is
proven, the level of undue influence which must be
shown is less than would normally be required since the
testator is in a weakened state.
Getty v. Getty, 581 S.W.3d 548, 555-56 (Ky. 2019) (quoting Bye, 975 S.W.2d at
457).
As to the alleged undue influence in this case, the evidence clearly
showed that Nellie suffered from dementia in 2011; however, the jury found that
Nellie did not lack the mental capacity to execute the September 2011 Will. While
Juanita and Tammy claim that the September 2011 Will was unnatural, Juanita was
not entirely left out of the Will but rather did not receive the share of the estate she
had expected. As for Tammy, Nellie only gave one grandchild anything in the
September 2011 Will – bedroom furniture. And, there was not a recently
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developed or short period of close relationship between Nellie and Leo. No
evidence was introduced that Leo participated in the preparation of the September
2011 Will or that he possessed the September 2011 Will. Finally, no evidence was
presented that Leo restricted contact between Nellie and Juanita or between Nellie
and Tammy.
Most importantly, we are cognizant that the alleged undue influence
must be of a kind that is “inappropriate[,]” such as “threats, coercion and the
like[.]” Getty, 581 S.W.3d at 555. Juanita and Tammy have failed to set forth any
evidence of inappropriate influence exerted on Nellie by Leo as to the September
2011 Will. See id. Viewing the evidence most favorable to Juanita and Tammy,
we believe that a reasonable juror could not find that Leo exerted undue influence
over Nellie that would invalidate the September 2011 Will. Thus, we are of the
opinion that the circuit court properly rendered a directed verdict upon Juanita and
Tammy’s undue influence claim.
Juanita and Tammy also maintain that the circuit court erroneously
rendered a directed verdict upon the claim that Leo breached a fiduciary duty he
owed Nellie pursuant to the power of attorney. Juanita and Tammy point out that
Nellie executed a power of attorney appointing Leo on September 2, 2011. Juanita
and Tammy argue that Leo breached his fiduciary duty by cashing certain
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certificates of deposit held in survivorship with either Nellie and Juanita or Nellie
and Joyce and by failing to preserve Nellie’s estate.
In directing a verdict, the circuit court initially concluded that a
fiduciary duty was owed to Nellie but “that relationship does not apply to Juanita
Whitis and cannot be brought by Juanita Whitis on her mother’s behalf.” Trial
Order and Judgment at 4. So, the circuit court reasoned that Juanita did not
possess standing to bring the breach of fiduciary claim on behalf of Nellie. This
was error.
Our Supreme Court has recognized that a decedent’s heirs at law
possessed standing to bring a claim for breach of fiduciary duty against the
decedent’s attorney in fact. Priestly v. Priestly, 949 S.W.2d 594, 598 (Ky. 1997).
The holding in Priestly is broad enough to also include beneficiaries under a will.
Similar to heirs at law, beneficiaries’ interests are far greater than a mere
expectancy upon the testator’s death. See id. While it was error to conclude that
Juanita lacked standing, the circuit court further decided:
[M]ore significantly, though the Certificates of
Deposit[s] were cashed by Virgil Leo Meece using his
Power of Attorney, the funds attained were put into an
account later designated as the estate account of Nellie
Meece to be distributed to her heirs. Changing the state
of the money does not rise to breach of a fiduciary duty.
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Trial Order and Judgment at 4. We agree with the circuit court’s above reasoning
as to merits of the breach of fiduciary duty claim; thus, any error by the circuit
court as to standing was merely harmless in this case. CR 61.01.
We view any remaining contentions of error as moot or without merit.
For the foregoing reasons, the Trial Order and Judgment of the
Pulaski Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE VIRGIL
LEO MEECE, EXECUTOR OF THE
Winter R. Huff ESTATE OF NELLIE MEECE AND
Somerset, Kentucky INDIVIDUALLY:
John G. Prather, Jr.
Somerset, Kentucky
Howard O. Mann
Corbin, Kentucky
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