FROM BOYD CIRCUIT COURT HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 13-CI-00151
FOR APPELLANT: Michael J. Curtis Ashland, Kentucky
FOR APPELLEE: Patrick M. Hedrick Ashland, Kentucky
BEFORE: COMBS, JONES AND NICKELL, JUDGES.
Sluss appeals from an order of the Boyd Circuit Court
granting summary judgment in this probate matter. At issue
was a challenge to the validity of a will executed by
Tamara's mother, Gloria B. Sluss. After our review, we
B. Sluss died on April 12, 2012. She was survived by two
adult daughters, Tamara Sluss and Erica Sluss Rosales, and
three grandchildren: Whitney Rosales, Delfino Rosales, and
Christopher Rosales. Whitney, Delfino, and Christopher are
Erica's children. Gloria was also survived by her sister,
appellee Lisa B. Culp.
majority of Gloria's assets, including a checking
account, an investment account, and a life insurance policy,
passed outside the probate estate to her sister, Lisa.
Gloria's will, executed on August 5, 2008, devised and
bequeathed the remainder of her assets to Lisa. In precatory
language included in a hand-written memorandum, Gloria asked
Lisa to give to Erica her home and its contents; to
distribute the liquid assets included in her estate among
Whitney, Delfino, and Christopher; and to divide her jewelry
between Erica and Tamara.
a week of Gloria's death, the will was proven by the
testimony of Gurney Johnson -- the attorney who prepared the
will and served as one of the two witnesses to its execution.
Lisa was appointed executrix.
filed this action contesting the will in February 2013. In
her deposition, Tamara admitted to having had a rocky
relationship with Gloria. After a period of discovery, Lisa
filed a motion for summary judgment. The trial court entered
summary judgment in favor of Lisa on November 17, 2016. This
appeal, Tamara asserts that the sole question to be decided
is whether Gloria was "under the influence of alcohol
and/or drugs at the time she signed her will . . . or even if
she was not, then what was her mental state?" Tamara
contends that she was entitled to a trial by jury on the
issues of her mother's testamentary capacity and
Lisa's allegedly undue influence upon her.
trial court grants summary judgment, we must determine
whether it erred by concluding that there were no genuine
issues of material fact and that the moving party was
entitled to judgment as a matter of law. Kentucky Rules of
Civil Procedure (CR) 56.03. To avoid summary judgment, the
party opposing its entry must present at least
some affirmative evidence to show that there exists
a disputed issue of material fact to be resolved at trial.
Lewis v. B & R Corp., 56 S.W.3d 432 (Ky. App.
2001) (citing Steelvest v. Scansteel Serv. Ctr.,
Inc., 807 S.W.2d 476 (Ky. 1991)).
privilege of testators to dispose of their property in ways
they see fit is zealously guarded by the courts. Bye v.
Mattingly, 975 S.W.2d 451 (Ky. 1998) (citing
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. Bye (citing
Nance v. Veazey, 312 S.W.2d 350 (Ky. 1958)). In
order to 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." Bye, 975 S.W.2d at 455 (internal
citations omitted). There is a strong presumption in favor of
testamentary capacity that cannot be overcome by remote or
speculative evidence. Id.
accounts, Gloria struggled with alcoholism. However, there is
absolutely no evidence in the record to suggest that she was
under the influence of alcohol or any other mind-altering
substance at the time that she executed her will on August 5,
2008. In fact, Tamara conceded in her deposition that Gloria
had "lucid moments" in 2008 -- the year the will
was executed -- which gave her some hope that her mother
would find sobriety. Tamara failed to produce sufficient
affirmative evidence to indicate ...