Opinion
NO. 2015-CA-001301-MR
01-06-2017
JOYCE WRIGHT APPELLANT v. GRETCHEN CROUCH-BIERLY CORNISH, EXECUTRIX OF THE ESTATE OF MARVIN WAYNE RATLIFF; and BYRON CLAY CROUCH APPELLEES
BRIEF FOR APPELLANT: William E. Johnson William Steven Middleton Frankfort, Kentucky BRIEF FOR APPELLEE: Bobbi Jo Lewis Lawrenceburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 14-CI-00318 OPINION
VACATING AND REMANDING
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BEFORE: COMBS, J. LAMBERT AND VANMETER, JUDGES. COMBS, JUDGE: This is a will contest case in which Appellant, Joyce Wright (Wright), appeals from an Opinion and Order of the Anderson Circuit Court granting summary judgment in favor of Appellees, Gretchen Crouch-Bierly Cornish (Cornish), Executrix of the Estate of Marvin Wayne Ratliff, and Byron Clay Crouch (collectively, the Appellees). The Appellees are Marvin Ratliff's former step-children. Ratliff and their mother divorced some five years prior to his death. Wright is Ratliff's biological sister. The trial court determined that the estate passed to the Appellees as contingent beneficiaries under a will executed by Ratliff before he and Appellees' mother were divorced. For the reasons set forth below, we vacate and remand.
Judge Laurence B. VanMeter dissented with separate opinion in this appeal prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
Ratliff's will, executed in 2001, provides in relevant part as follows:
I give, devise and bequeath all of my property, real, personal or mixed, wherever situated and whether acquired before or after the execution of this Will to my wife, PEGGY RUTH RATLIFF, absolutely and in fee simple; provided that if my wife, PEGGY RUTH RATLIFF fails to survive me for a period of thirty (30) days, or perishes as a result of a common accident or disaster within Ninety (90) days of my death, then, in either such event, all of my property, real, personal or mixed, wherever situated and whether acquired before or after the execution of this Will, is hereby given, bequeathed and devised as follows:(emphases original). The will named Peggy Ratliff as Executrix and Cornish as Contingent Executrix in the event that Peggy was unable to serve for any reason.
I give, devise and bequeath my knives, guns and antique automobiles to my step-daughter, GRETCHEN CROUCH-BIERLY, absolutely and in fee simple.
I give, devise and bequeath one-half (1/2) of the rest and residue to my step-daughter, GRETCHEN CROUCH-BIERLY absolutely and in fee simple.
I give, devise and bequeath one-half (1/2) of the rest and residue to my stepson, BYRON CLAY CROUCH, absolutely and in fee simple.
The Ratliffs divorced in 2006. The December 19, 2006, Decree of Dissolution incorporated the following Property Settlement Agreement which provides in relevant part as follows:
[E]ach party releases and discharges, forever and completely, the other from any and all rights of past, present and future support, division of property, right of dower, right to act as personal representative in the estate of the other, right of distributive share in the other's estate, right of exemption in the estate of the other, or any other property rights, benefits or privileges accruing unto either party by virtue of said marriage relationship, otherwise, and whether the same are conferred by statutory law, or the common law, of Kentucky, of any other state, or of the United States.
Marvin Ratliff died on March 27, 2014. His will was admitted to probate in the Anderson District/Probate Court dated April 28, 2014. Cornish was appointed as Executrix of the estate. The petition for probate identified Cornish as the "Frmr. Step Daughter," age 40. Byron Clay Crouch was named as the "Frmr. Step Son," age 35.
On September 23, 2014, Wright filed a complaint in Anderson Circuit Court naming the Appellees and the Kentucky Retirement Systems as Defendants. Wright alleged that she was entitled to decedent's estate as his heir-at-law because the bequests under the will had been rendered null and void by virtue of the Ratliffs' divorce. Wright also alleged that Cornish had wrongfully disallowed Wright's claim for payment of Ratliff's retirement benefits. She claimed that Kentucky Retirement Systems had wrongfully disbursed benefits to the estate when it knew -- or should have known -- that Ratliff had executed a "Death Benefit Designation" before his death in which he named Wright as beneficiary of his retirement benefits. The alleged designation, filed as an exhibit to Wright's complaint, was dated January 30, 2007. Wright sought a declaration that the will is null and void as well as a judgment that she is the lawful beneficiary of the entire estate.
On October 10, 2014, Appellees filed an answer to the complaint. On October 14, 2014, Kentucky Retirement Systems filed a combined motion to dismiss as well as their answer to the complaint.
On November 14, 2014, Appellees filed a motion for summary judgment. In their supporting memorandum, Appellees contended that Ratliff had completed a Form 6000 (Notification of Retirement) designating his wife, Peggy, as beneficiary of his retirement benefits. The accompanying Affidavit from Rebecca Stevens, Chief Benefits Officer at Kentucky Retirement Systems, confirmed that the attached Form 6000, dated August 14, 2000, designated Peggy as beneficiary and that it is the only Form 6000 on file for Marvin Ratliff.
Although the validity of the purported January 30, 2007, designation naming Wright as beneficiary is contested, the Appellees contended that it was never filed with Kentucky Retirement Systems and that, therefore, the Kentucky Retirement Systems had properly disbursed the benefits to the estate pursuant to KRS 61.542(5). That statute provides in relevant part that:
Kentucky Revised Statutes. --------
(5) After the first day of the month in which the member receives his or her first retirement allowance and subsequent thereto, a member shall not have the right to change his beneficiary, except that:
. . .
(b) The estate of the retired member becomes the beneficiary if the retired member had designated a person as beneficiary who was the spouse ... and they were divorced on the date of the retired member's death. . . .
Appellees also contended that KRS 394.092 controls the disposition of property under the will. That statute provides:
If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by the testator's remarriage to the former spouse.
Appellees argued that their designation as step-children in the will had no legal significance other than for identification purposes, that the divorce did not mean that Ratliff had ceased his relationship with Appellees ("in fact it was just the opposite"), and that entirety of the estate passes to them under the will by operation of law.
On December 12, 2014, Wright filed a Response and Counter-Motion for Summary Judgment, noting that she had agreed to dismiss her claims against Kentucky Retirement Systems. She acknowledged that the retirement benefits had been properly paid to the estate and were being held by the estate pending the outcome of this litigation. However, Wright argued that Appellees were no longer Mr. Ratliff's step-children at the time of his death, a status which was a "prerequisite condition" to their inheriting under the will. However, Wright contended that KRS 394.092 was not controlling because the divorce cut off any claims that Peggy might have had from the estate. At footnote on page 7 of her Response and Counter-Motion, Wright noted that Peggy Ratliff remarried before Ratliff's death and is now Peggy Peach. Wright also contended that the condition precedent for Appellees to inherit under the will could not be met: namely, Ratliff's wife's failure to survive him for thirty days or her death as a result of a common accident or disaster within ninety days. Because of the divorce, that condition precedent had been eliminated.
On December 17, 2014, the trial court entered an agreed order dismissing with prejudice Wright's complaint against the Kentucky Retirement Systems.
On August 4, 2015, the trial court entered an Opinion and Order granting summary judgment in favor of the Appellees. The trial court disagreed with Wright that the Divorce Decree voided the entire Will. Pursuant to the decree of dissolution and KRS 394.092, the trial court disregarded any disposition of property to Peggy and interpreted the will as if she had predeceased Marvin Ratliff. The trial court agreed with the Appellees that the phrases "my step-daughter" and "my stepson" were intended to serve merely as identifiers and that they did not create a legal status as a condition precedent for Appellees to inherit under the Will. The trial court also observed and noted that:
had it been Ratliff's intent that [Appellees] should only inherit his property if they remained his stepchildren until his death ... he could have easily set out such a condition in his will. (opinion of the court at p. 3.)The trial court held that the language of the will was unambiguous, that Cornish should receive her specific bequest, and that the residue of the estate along with the retirement benefits should be divided between the Appellees equally. On August 25, 2015, Wright filed her Notice of Appeal to this Court.
On appeal, our standard of review is to determine "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). The standard is refined further where probate law is involved in order to ascertain testamentary intent:
Since summary judgment involves no fact finding, this Court reviews such orders de novo. This includes interpretations of statutes. ... [and] wills. ... When the interpretation of a will is in dispute, Kentucky follows the "polar star rule", which provides that a testator's intention, if not contrary to law, controls. Reynolds v. Reynolds, 434 S.W.3d 510, 513 (Ky. App. 2014) (citations omitted).
On appeal, Wright contends that in order to inherit under Ratliff's will, Appellees had to be his step-children at the time of his death. She also contends that Ratliff intended to revoke his will upon his divorce as indicated by the Property Separation Agreement, which effectively rendered moot the relevance or application of KRS 394.092. We agree with the trial court that the disposition of property to Peggy Ratliff under the will is revoked both by operation of the divorce decree and by KRS 394.092. However, both are silent as to the effect of divorce on bequests to relatives of the ex-spouse: namely, to Peggy's children.
The trial court agreed with Appellees that terminology referring to my "step-daughter" and to "my step-son" were intended only as identifiers. Appellees argue before us -- as they did below -- that their description as step-children has no legal significance and merely serves for identification purposes. However, Appellees cite no authority to support this argument.
BLACK'S LAW DICTIONARY (10th Ed. 2014) defines step-child as "[t]he child of one's spouse by a previous partner." As Wright notes in her Response and Counter-Motion for Summary Judgment, Peggy Ratliff remarried before Ratliff died and is now Peggy Peach. Therefore, Appellees were Mr. Peach's stepchildren at the time of Marvin Ratliff's death, and he died without spouse or stepchildren. We are compelled to conclude that as a result of this language, a latent ambiguity has arisen that precludes entry of summary judgment.
A latent ambiguity is one which does not appear upon the face of the words used, and it is not known to exist until the words are brought in contact with the collateral facts. 2 C. J. 1312. In other words, there does not appear any duplicity, indistinctness, or uncertainty from the words used, but appears when the words are applied to the subject which they describe. ...Carroll v. Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186, 190 (1916).
When an ambiguity surfaces, we must seek clarification by way of other evidence. "Extrinsic evidence is admissible to explain the uncertainty in the case of a latent ambiguity." Hurst v. Standard Oil Co., 308 Ky. 779, 783, 215 S.W.2d 962, 964 (1948). See Day v. Asher, 141 Ky. 468, 132 S.W. 1035, 1036 (1911) ("[A] latent ambiguity... produced by extrinsic facts, may also be solved by extrinsic evidence."); Hoge v. Street, 310 Ky. 370, 373, 220 S.W.2d 830, 832 (1949) ("We could ... spend days discussing whether ... such ambiguity is patent or latent. It is unnecessary to do so since we have consistently held that improper wording ... which leaves a doubt as to the [testator's] intent ... justifies the introduction of circumstantial evidence to clarify the meaning of the words used.").
Appellees correctly note that the making of a will creates a presumption against intestacy, a presumption which is strengthened when a will contains a residuary clause. Benjamin v. JP Morgan Chase Bank, N.A., 305 S.W.3d 446 (Ky. 2010). Kentucky law holds that "[e]very reasonable presumption will be indulged against partial intestacy, but the presumption cannot be applied to supply a disposition which was not made or intended." Hall's Adm'r v. Compton, 281 S.W.2d 906, 910 (Ky. 1955). It has long been black-letter law that ascertainment of testator's intent is the primary focus of probate law. As our Supreme Court stated in Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010), "[A] court's primary duty is to ascertain and give effect to the testator's intent. This task is complicated by the fact that there is seldom precedent directly on point. It has been said no will has a brother, much less a twin."
No evidence was presented as to the nature of the relationship between and among Ratliff and his former stepchildren after the divorce and prior to his death. Some factual findings are needed concerning his relationship with them in order to determine if his testamentary intent post-divorce remained unaltered as to the Appellees. Some evidence is required to resolve the ambiguity as to the status of the Appellees and as to Ratliff's testamentary intent with regard to them. Because of the presence of this material issue of fact, summary judgment was inappropriate at this stage in the litigation.
Accordingly, we vacate the Opinion and Order of the Anderson Circuit Court granting Appellees' Motion for Summary Judgment and we remand this case to the trial court for additional proceedings consistent with this Opinion.
J. LAMBERT, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS BY SEPARATE OPINION.
VANMETER, JUDGE, DISSENTING: I respectfully dissent. The majority opinion cites only one case for the proposition that a latent ambiguity permits the introduction of extrinsic evidence. Carroll v. Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186 (1916). The full quotation from Carroll is the following:
A latent ambiguity is one which does not appear upon the face of the words used, and it is not known to exist until the words are brought in contact with the collateral facts. 2 C. J. 1312. In other words, there does not appear any duplicity, indistinctness, or uncertainty from the words used, but appears when the words are applied to the subject which they describe. In Breckenridge v. Duncan, [9 Ky. (2 A. K. Marsh)] 50, 12 Am. Dec. 359 [(1819)], a latent ambiguity was defined to be a state of case "whe[n] the intention of the party is clearly expressed, and a doubt exists, not as to the intention, but as to the object to which the intention applies." When a latent ambiguity exists in a will, it is permissible to prove the declarations of the testator made at the time or about the time of the execution of the will for the purpose of identifying the objects or persons upon which it is intended that the will should operate, and the facts and circumstances which surround the testator at the time of the making of the will, in order to explain the language of the will and to assist the court in determining his intentions. Tudor v. Terrel, [32 Ky. (2
Dana)] 47 [(1834)]; Thomas v. Scott, 72 S.W. 1129, 24 Ky. Law Rep. 2031 [(1903)]; Mitchell v. Walker, [56 Ky. (17 B. Mon.) 61 (1856)]; 40 Cyc. 1428, 1429, 1431. Where the language is plain and unambiguous, however, the parol declarations of the testator cannot be received, where they give the will a different meaning from that expressed.172 Ky. at 212-13, 189 S.W. at 190 (emphasis added).
The cardinal rule in the construction of wills is to ascertain the testator's intention. Shoemaker's Ex'r v. Consorti, 305 Ky. 866, 873, 205 S.W.2d 697, 700 (1947) (citations omitted). Furthermore, "[a] court, in determining intention of a testator, will place itself in the testator's situation at the time of the execution of the will. Id., (citing Felty v. Easterling, 286 Ky. 34, 149 S.W.2d 760 (1941). In a slightly more recent case, the court stated "[c]ertainly, what transpired after the will was executed cannot be considered in evaluating the purpose of the testator at the time he wrote it." Edmondson v. Wylie, 283 S.W.2d 371, 373 (Ky. 1955). The purpose of admitting extrinsic evidence is to "[sit] down in the testator's chair, using his own hand, looking right out of his eyes, trying to think his very thoughts." Shoemaker's Ex'r, 305 Ky. at 873, 205 S.W.2d at 701.
The remainder to the two named and identified step-children contains no ambiguity. At the time the will was written, they were his step-children; the will is clear and the testator's intention at the time it was written is clear. The will contains no conditional bequest/devise. The fact that he subsequently divorced obviously revoked any benefit to his ex-wife, but does not change the bequest/devise to these two named individuals. To proceed along the lines suggested by the majority opinion is to change the clearly expressed disposition set forth by the testator, essentially to insert a sentence that "provided, however, in the event my wife and I divorce, I direct that all the rest, residue and remainder of my estate go to my heirs at law." In other words, the majority opinion (1) impermissibly revises the testator's will along lines that nowhere appear, and (2) ignores the provisions of KRS 394.080 that sets forth the three exclusive means of revoking a will, none of which apply to this case.
I would affirm the Anderson Circuit Court's well-reasoned Opinion and Order in all respects. BRIEF FOR APPELLANT: William E. Johnson
William Steven Middleton
Frankfort, Kentucky BRIEF FOR APPELLEE: Bobbi Jo Lewis
Lawrenceburg, Kentucky