Kentucky

Probate, will execution and undue influence in will contest: AMOS V. CLUBB (COA 10/3/2008)

By Michael Stevens

AMOS V. CLUBB
PROBATE:  Will Exection, Undue Influence Issue
2007-CA-001181
PUBLISHED: REVERSING AND REMANDING
PANEL: LAMBERT, JAMES PRESIDING; STUMBO, THOMPSON CONCUR
OLDHAM COUNTY
DATE RENDERED: 10/3/2008

This was a will contest between a man?s wife and stepdaughter on one side and his sisters on the other. Terry Clubb owned a one-third interest in the family farm in Oldham County. After going to the doctor for difficulty swallowing, he learned that he had a horribly aggressive form of esophageal cancer, and he died 25 days later. Soon after receiving the diagnosis, he made arrangements to leave his interest in the farm to his sisters to preserve it. Later, and even though the disease was advancing swiftly and there wasn?t much time to act, he made arrangements to leave his estate to his wife and stepdaughter with no mention of his sisters. The Circuit Court granted summary judgment for the wife and stepdaughter and the Court of Appeals reversed in favor of the sisters. The Court found that there was ample evidence tied to the Bye v. Mattingly badges of undue influence to send the case to the jury.

One statement, however, stands out. The Court of Appeals noted ?that the extreme pain Terry was in, combined with the levels of medication he was taking, could easily have amounted to mental impairment.? When taken in the context of a disease that progressed so rapidly and brutally, that observation makes sense. The statement, however, should not be construed as a blanket statement that pain medication is a badge of incapacity in all cases. Appropriate testimony should be required to support such an assertion.

Digested by Jim Worthington

Full post as published by Kentucky Cases on December 09, 2008 (boomark / email).