Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sluss v. Estate of Sluss

Court of Appeals of Kentucky

February 16, 2018

TAMARA SLUSS APPELLANT
v.
ESTATE OF GLORIA B. SLUSS, LISA B. CULP, EXECUTRIX, and LISA B. CULP, INDIVIDUALLY APPELLEES

         APPEAL FROM BOYD CIRCUIT COURT HONORABLE C. DAVID HAGERMAN, JUDGE ACTION NO. 13-CI-00151

          BRIEF FOR APPELLANT: Michael J. Curtis Ashland, Kentucky

          BRIEF FOR APPELLEE: Patrick M. Hedrick Ashland, Kentucky

          BEFORE: COMBS, JONES AND NICKELL, JUDGES.

          OPINION

          COMBS, JUDGE:

         Tamara 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 affirm.

         Gloria 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.

         The 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.

         Within 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.[1]

         Tamara 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 followed.

         On 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.

         When a 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)).

         The 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.

         By all 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.