TAYLOR, Chief Judge:
Bonnie Lee Kemper, individually, and in her capacity as Executrix of the Estate of William Scott (W.S.) Kemper (collectively referred to as "appellants") bring this appeal from an August 27, 2009, judgment of the Cumberland Circuit Court following a jury trial declaring that the Last Will and Testament of W.S. Kemper was procured by undue influence and setting aside same. We affirm.
W. S. Kemper was born February 18, 1920. W.S. married Norma Jean Kemper, and the couple had two sons, Paul Kemper and David Kemper. W.S. and Norma were married for over forty years and raised their sons in Carroll County, Kentucky. W.S. acquired a substantial amount of wealth during his marriage to Norma. On August 13, 1986, W.S. and Norma executed a joint will. The will contained a provision providing that upon the death of either party, his or her estate would pass to the other. Thereafter, Norma died and her entire estate passed to W.S. per the will. After Norma's death, W.S. executed a new will on December 30, 1992. W.S. named Paul as executor and left his entire estate to his two sons, Paul and David.
On September 7, 1993, W.S., then seventy-three years of age, married thirty-five-year-old Bonnie Lee Maiden. As a result of the marriage between W.S. and Bonnie, familial relations between W.S., his two sons, and their families became seriously strained to the point of an alleged physical altercation between Bonnie and W.S.'s daughter-in-law. It also was alleged that Bonnie discouraged and restricted Paul and David's access to W.S. Sometime in 2000, Bonnie relocated W.S. from Carroll County to Cumberland County, Kentucky. After the move, W.S. was diagnosed with prostate cancer. In January 2006, W.S. was hospitalized. His cancer had metastasized causing compression of his spinal cord and resulting in paralysis below the waist. On January 21, 2006, while still hospitalized, W.S. executed another will leaving the bulk of his estate to Bonnie; Paul and David were each devised a mere one-sixth interest in a tract of real property. W.S. died on June 27, 2006.
On December 8, 2006, Paul and David filed a complaint in Cumberland Circuit Court seeking to set aside the January 21, 2006, will due to lack of W.S.'s mental capacity to execute same and due to Bonnie's undue influence over W.S. In August of 2009, the case was tried in the Cumberland Circuit Court. The jury found that W.S. possessed the requisite mental capacity to execute the January 21, 2006, will but that Bonnie exerted undue influence over W.S. in the drafting of the will. By judgment entered August 27, 2009, the circuit court set aside the January 21, 2006, will. This appeal follows.
Appellants initially contend the circuit court erred by denying the motion for directed verdict upon the claim that Bonnie exerted undue influence over W.S. in drafting the January 21, 2006, will. The record reveals that appellants moved for a directed verdict on the claim of undue influence, and the circuit court denied the motion. Kentucky Rules of Civil Procedure (CR) 50.01. Our standard of review upon the denial of a motion for directed verdict is as follows:
Rothwell v. Singleton, 257 S.W.3d 121, 124 (Ky. App. 2008)(quoting Gibbs v. Wickersham, 133 S.W.3d 494, 495-496 (Ky. App. 2004)).
Undue influence is generally defined as influence that rises to the level of destroying the testator's free will to dispose of his property in accordance with his own judgment and replaces it with the "desires of the influencer" Nunn v. Williams, 254 S.W.2d 698 (Ky. 1953). Ordinarily, undue influence is subtly imposed without any witness, and direct evidence is unavailable. Rothwell v. Singleton, 257 S.W.3d 121 (Ky. App. 2008); Zeiss v. Evans, 436 S.W.2d 525 (Ky. 1969). Therefore, to determine the existence of undue influence, courts recognize certain indicia or "badges" of undue influence. Rothwell, 257 S.W.3d 121. The indicia of undue influence are as follows:
Rothwell, 257 S.W.3d at 125. Some or all of these indicia may be present and are recognized as circumstantial evidence of undue influence sufficient to warrant submission of the issue to the jury. 1 James R. Merritt, Kentucky Practice — Probate Practice and Procedure, § 545 (2 ed. 1984). We will address the relevant indicia of undue influence introduced at trial in this case.
As to the first relevant indicium of undue influence, physically weak and mentally impaired testator, the record reveals that W.S. had become physically weak and seriously ill in the weeks prior to executing the January 21, 2006, will. According to the medical records introduced at trial, W.S. initially developed numbness in both legs, had no movement in his right leg, could not hold his own weight, and could not ambulate. The prostate cancer had metastasized to his thoracic spine and eventually left him paralyzed below the waist. Also, medical records reveal that W.S. was in much "distress." Thus, there existed sufficient evidence of a probative value to support this indicium of undue influence.
As to the second indicium of undue influence (unnatural disposition), there was also sufficient testimony of a probative value introduced at trial. There was evidence that W.S. had accumulated a significant amount of property during his forty-year marriage to his first wife, Norma. Also, it was revealed that his sons had engaged in significant business transactions with him over the years, including building a subdivision in Carroll County. Under the January 21, 2006, will, this subdivision was devised to Bonnie,
The third and fourth indicia of undue influence—participation by the principal beneficiary in preparation of the will and possession of the will by the principal beneficiary—is also relevant herein. There was sufficient evidence of a probative value introduced at trial regarding Bonnie's participation in preparation of the January 21, 2006, will. Bonnie even testified that she wrote part of the draft used in the preparation of the will. W.S.'s attorney, Lanny Judd, testified that Bonnie transported W.S. to his office on numerous occasions to discuss preparation of the will and would often be present during the discussions between W.S. and Judd. Bonnie also arranged execution of the January 21, 2006, will when W.S. was hospitalized. She contacted the witnesses, contacted a notary, and arranged a time for their attendance to execute the will. Bonnie also testified that she retained possession of the will for approximately six days after its execution. Thus, there existed sufficient evidence of a probative value to demonstrate these relevant indicia of undue influence.
The fifth relevant indicium of undue influence—efforts by the principal beneficiary to restrict contacts between the testator and the natural objects of his bounty—was also clearly present in the case. Specifically, there was evidence that Bonnie restricted contact by Paul and David with W.S. There was testimony that Paul and David were unable to contact their father by phone after he and Bonnie moved to Cumberland County, that the phone was frequently taken off the hook, and that Bonnie would eavesdrop on the occasions when Paul and David were able to speak with their father by phone. Paul also testified that Bonnie would not allow W.S. to be alone with him.
Upon the whole, we are of the opinion that sufficient evidence of a probative value existed upon which reasonable men could differ regarding whether Bonnie exerted undue influence over W.S. in the drafting of the January 21, 2006, will. The above indicia of undue influence certainly constituted sufficient circumstantial evidence of Bonnie's undue influence. As such, we do not believe the circuit court erred by denying Bonnie's motion for a directed verdict upon the claim of undue influence.
As to the propriety of the trial court's denial of a directed verdict, we also point to the Supreme Court decision in Rothwell, which held:
Rothwell, 257 S.W.3d at 125. As hereinbefore set forth, the January 21, 2006, will certainly provided for an "unequal or unnatural" disposition of W.S.'s estate; thus, only "slight evidence" of undue influence was necessary to defeat a directed verdict. See id. We also conclude that more than slight evidence existed of Bonnie's undue influence necessary to mandate submission of the issue to the jury. See id.
Appellants further argue that the trial court committed reversible error by excluding certain evidence at trial. We disagree.
A trial court possesses broad discretion in ruling upon evidentiary issues. Clephas v. Garlock, Inc., 168 S.W.3d (Ky. App. 2004). If the trial court abuses its discretion in admitting or excluding evidence, such error is only reversible if it affected the substantial rights of a party; i.e., whether there existed a reasonable possibility that the outcome of the proceedings would have been different absent the error. Kentucky Rules of Evidence (KRE) 103; CR 61.01; Hawkins v. Rosenbloom, 17 S.W.3d 116 (Ky. App. 1999)(citing Crane v. Com., 726 S.W.2d 302 (Ky. 1987).
As to the trial court's erroneous exclusion of evidence, appellants specifically argue:
Appellants' Brief at 13-15.
The excluded testimonies of Gary White and Raymond Costello centered upon W.S. intimating to them that he had taken care of Bonnie. Under KRE 803(3),
A statement by W.S. that he had taken care of Bonnie is vague and ambiguous; moreover, such statement does not directly prove the contents of W.S.'s will, his mental condition at the time of executing the will, or his susceptibility to external influences at the time of executing the will. Taken together, we cannot conclude that the trial court abused its discretion by excluding the above testimonies of White and Costello. For these same reasons, we also do not believe the trial court abused its discretion in excluding the testimony of Judd concerning the implementation of the decedent's estate plan. However, even if an abuse of discretion occurred, the exclusion of this evidence certainly did not affect the substantial rights of appellants. KRE 103; CR 61.01; Hawkins, 17 S.W.3d 116.
As to the exclusion of evidence concerning the $4.5 million promissory note, we think its relevancy is seriously questionable, and any impeachment or probative value thereof was much outweighed by the danger of undue prejudice and confusion of the issues. KRE 401; KRS 403. Thus, no reversible error occurred by the exclusion of such evidence.
Next, appellants maintain that the trial court committed reversible error by admitting certain evidence at trial. Appellants set forth several items of evidence, and we shall address each.
Appellants believe the trial court erred by admitting the testimony of Raymond Garret that W.S. stated in 2005 that he was afraid of Bonnie and that Bonnie possessed a handgun. Also, appellants complain that the testimony of David Carter was erroneously admitted. Appellants object to Carter's testimony that W.S. stated that he wanted to leave his estate to his biological children (Paul and David) but that Bonnie would not allow him to do so. Carter testified that W.S.'s statement was made in 2005 while they were fishing. Further, appellants claim that the trial court erred by admitting W.S.'s medical records from Tri-County Hospital. These records concerned physical injuries sustained by W.S. and allegedly cause by Bonnie.
At trial, a claim was presented to the jury that Bonnie exerted undue influence upon W.S. in the making of the January 21, 2006, will. Generally, undue influence exists when such influence is "sufficient to destroy the free agency of the testator so that his disposing of his property in a way which he would otherwise refuse to do." 1 James R. Merritt, Kentucky Practice—Probate Practice and Procedure, § 545 (2 ed. 1984). Moreover, the influence may occur prior to or at the time of executing the will. Id.
Here, the testimonies of Garrett and Carter and the Tri-County Hospital medical records were directly relevant upon the claim of undue influence. KRE 401. Moreover, it is immaterial that W.S.'s statements concerning Bonnie's influence and that the hospital records were dated some years prior to the actual execution of the January 21, 2006, will so long as the statements evidenced undue influence that "operated upon the testator [W.S.] at the time the will was executed." Consequently, we cannot say the trial court abused its discretion by admitting into evidence the above testimonies of Garrett and Carter and Tri-County Hospital medical records.
Appellants also argue that the trial court erroneously admitted into evidence a handwritten "note" of W.S. Appellants point out that the note appears to be a holographic will and is dated October 9, 2000. As a previous will of W.S., appellants maintain that the trial court erred by admitting same under KRS 394.130.
The record reveals that W.S.'s handwritten note was admitted for the narrow purpose of demonstrating W.S.'s signature and writing style. Moreover, the trial court gave the jury a specific admonition that the note should only be considered for such narrow purpose. In Trivette v. Johnson, 257 Ky. 681, 79 S.W.2d 6, 7 (1935), the Court held that KRS 394.130 "does not prevent the introduction in evidence of an unprobated testamentary paper, not offered as a will of testator, but to establish a collateral fact." As the note was introduced to establish a collateral fact and with a jury admonition, we perceive no prejudicial error. See CR 61.01.
Appellants next maintain that the trial court erred in denying their motion for a new trial due to juror misconduct. CR 59.01. Specifically, appellants cite to the affidavits of two jurors asserting that another juror or jurors disregarded an admonition given to the jury by the trial court. Appellants contend that the jury's failure to follow the trial court's admonition resulted in reversible error, thus necessitating a new trial.
In this Commonwealth, it has long been the law that a jury's verdict generally may not be impeached by affidavit or testimony of an individual juror or jurors. Pittsburg Coal Co. v. Withers, 19 Ky. L. Rptr. 113, 37 S.W. 584 (1896); Cadle v. McHargue, 249 Ky. 385, 60 S.W.2d 973 (1933); Dillardv. Ackerman, 668 S.W.2d 560 (Ky. App. 1984); Doyle, By and Through Doyle v. Marymount Hospital, Inc., 762 S.W.2d 813 (Ky. App. 1988); Previs v. Dailey,180 S.W.3d 435 (Ky. 2005). For this reason alone, we reject appellants' argument.
Appellants lastly claim the appellees' counsel engaged in "misconduct" resulting in prejudicial error and, thus, necessitating a new trial under CR 59.01(b).
Specifically, appellants complain that appellees' counsel made improper statements during closing argument and during cross-examination and examination of witnesses. In particular, appellants state that appellees' counsel incorrectly "told the jury there was nothing in the Tri-County Hospital records that revealed decedent made a statement that there had been an altercation between his wife and his daughter-in-law." Appellants' Brief at 19. Additionally, appellants point out that appellees' counsel improperly cross-examined Judd and, in doing so, misled the jury regarding how W.S.'s estate would pass if the January 21, 2006, will was invalidated:
Appellants' Brief at 20. Appellants also allege appellees' counsel engaged in misconduct when questioning Paul at trial:
Appellants' Brief at 21-22. In support of the above argument, appellants cite this Court to Risen v. Price, 807 S.W.2d 945 (Ky. 1991).
However, we cannot say that appellees' counsel's alleged misconduct rises to a level tantamount to the attorney's misconduct in Risen, 807 S.W.2d 945, necessary to warrant reversal without a showing of prejudice. Moreover, even considering the alleged instances of counsel's misconduct together, we are of the opinion that no prejudicial error resulted therefrom. In this case, the jury heard evidence from each party over the span of several days and ultimately found that Bonnie exerted undue influence over W.S. as to the January 21, 2006, will. Appellants' specific allegations of appellee's counsel misconduct are simply insufficient to vitiate the jury's verdict.
In sum, we hold that no reversible error occurred necessitating reversal of the August 27, 2009, judgment upon the jury verdict in favor of appellee upon their claim of undue influence.
For the foregoing reasons, the judgment of the Cumberland Circuit Court is affirmed.
ALL CONCUR.
