Philip Willett as Heir of Frances J. Vessels v. the Estate of Frances Vessels

                       RENDERED: JULY 16, 2021; 10:00 A.M.
                              TO BE PUBLISHED

                   Commonwealth of Kentucky
                               Court of Appeals

                                  NO. 2020-CA-0272-MR

PHILIP WILLETT; CASEY E.
GOATLEY; AND JOSEPH GOATLEY                                                    APPELLANTS


                  APPEAL FROM HICKMAN CIRCUIT COURT
v.               HONORABLE TIMOTHY A. LANGFORD, JUDGE
                          ACTION NO. 18-CI-00034


THE ESTATE OF FRANCES J.
VESSELLS1; BARBARA J. WILLETT;
CRAIG WILLETT; ELLEN B. DAVIS;
LYNN BERRY; ROSEMARY
PLUSKAT; AND VIVIAN TIEMANN                                                      APPELLEES


                                   OPINION
                           REVERSING AND REMANDING

                                        ** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.




1
  Throughout the record, the last name of the decedent was spelled “Vessells.” Despite this, the
Hickman Circuit Clerk entered the name as “Vessels” in the case management system and the
Clerk of this Court erroneously followed suit. Ms. Vessells’ own signature on her form will
indicates the proper spelling of the surname.
CALDWELL, JUDGE: This case presents the question of the validity of a form

will and several pages of bequests handwritten by the decedent with several of

these pages signed at the top of the page. The circuit court found the documents

together should be properly considered a valid will and codicils. The heirs at law

appealed, and we reverse and remand.

                                       FACTS

             Frances Vessells, a resident of Fancy Farm in Hickman County,

Kentucky, died on June 1, 2017, at the age of 87 years. Her husband, John

Vessells, predeceased her in July of 2016. His estate was not probated as the

couple owned everything as joint tenants with rights of survivorship, meaning that

Mrs. Vessells gained ownership of all the couple’s possessions and property at his

death. The couple had no children.

             Several documents were located after Mrs. Vessells’ death and were

presented to the Hickman District Court for a determination of whether the

documents could properly be considered testamentary. A hearing was held in the

district court wherein Barbara Willett, one of the Appellees herein, testified to

having assisted Mrs. Vessells as she aged. Ms. Willett described how she found

the form will in a safe deposit box at a local bank, after having located the key in a

lockbox in a closet at the decedent’s home after Mrs. Vessells’ passing. Also

found in that safe deposit box were the purported testamentary documents written


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in the decedent’s hand listing nine names and entitled “Sixty Percent to names

Residual Bequest.” The first of two pages of names was signed by Mrs. Vessells at

the top of the page. A third page, found at the home in the lockbox, was entitled

“Specific Bequests” and listed several bequests of family heirlooms to two persons

and was likewise signed at the top of the page. The last page, also found in the

lockbox at the home, was entitled “Things Barbara should know” and listed Mrs.

Vessells’ wishes for her funeral service, including music and which dress she

wanted to wear for her burial. This page also directed that her house and contents

be sold, and any proceeds thereof should be given to a charity of Barbara Willett’s

choosing. This page was not signed.

              Despite several appearances and the aforementioned hearing, the

district court never entered an order adjudging the validity of any of the

testamentary documents presented to it. It did, however, appoint an administrator

and signed an order allowing for real estate owned by Mrs. Vessells to be sold as

part of the estate.

              In 2018, a petition for declaratory relief was filed by the administrator

in the Hickman Circuit Court seeking an order concerning the validity of the

testamentary documents found by Ms. Willett and requesting that the circuit court

determine who should inherit from the estate. As counsel for the estate pointed

out, the form will, regardless of its ultimate validity, left all assets of the estate to


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John Vessells, who had predeceased the decedent, and he was without issue. This

created a question of whether the persons named on the handwritten sheets found

in the lockbox should inherit or whether those documents should be declared

invalid and the heirs at law inherit the intestate estate.

             The circuit court did not issue findings of fact and conclusions of law

and an order until January of 2020. In the order ultimately issued, the circuit court

held that the form will was properly executed, having been signed by the decedent

at its end and attested to by two witnesses. However, the court held that form will

failed to be effective in that it left everything to Mr. Vessells, who had predeceased

the decedent, and who had passed without issue.

             The circuit court held that the decedent sufficiently evinced

testamentary intent when she referred to “a separate sheet of paper” in the form

will and stated she “hoped” her husband would follow her wishes found therein.

The circuit court noted that the separate sheets of paper found in the safe deposit

box were signed by her twice, at the top of first of the two sheets of paper—which

listed nine beneficiaries—and at the top of the page entitled “Specific Bequests.”

             The circuit court concluded that all of the documents together

constituted a valid will and codicil. The court held that sixty percent (60%) of her

estate, less the specific bequests of family heirlooms, should be distributed to the




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nine named beneficiaries in the “codicil” and the remaining forty percent (40%)

should pass by intestacy.

             Those heirs at law who would have inherited her entire estate through

intestacy appealed this determination to this Court. We hold that the circuit court

erred when it declared the handwritten sheets of paper, not subscribed by the

decedent, to be valid codicils and remand this matter to the Hickman Circuit Court

for an order declaring Mrs. Vessells died intestate and that the Hickman District

Court should probate her estate in accordance thereto.

                               STANDARD OF REVIEW

             “In a declaratory action, findings of fact are reviewed under a clearly

erroneous standard, and conclusions of law are reviewed de novo.” Big Sandy Co.,

L.P. v. EQT Gathering, LLC, 545 S.W.3d 842, 844 (Ky. App. 2018) (citing Baze v.

Rees, 217 S.W.3d 207, 210 (Ky. 2006)).

                                    ANALYSIS

             As stated above, Mrs. Vessells executed a form will in 2015 leaving

everything to her husband. However, he predeceased her, and the will contained

no residuary clause and named no alternate beneficiary in the event her husband

predeceased her, as he did. Because the form will did not appoint an alternate

beneficiary or beneficiaries or otherwise address who should inherit her estate




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should her only named beneficiary, her husband John, predecease her, the will is of

no consequence.

               The anti-lapse statute, Kentucky Revised Statute (KRS) 394.400,2

does not assist us here as that statute only is applicable when the predeceasing

beneficiary left issue, which John Vessells did not. Thus, either Mrs. Vessells’

estate shall pass by intestacy, or the pages found by niece Barbara Willett shall be

considered a proper holographic will and in accordance therewith, sixty percent

(60%) of her estate shall be distributed equally to those named therein. We find

the circuit court incorrectly deemed the handwritten pages to be valid codicils as

they were not “subscribed” by the decedent as required by law.

               The district court, after hearing testimony from Barbara Willett and

another witness who verified the decedent’s handwriting, correctly surmised that

the validity of the testamentary documents would “come down to” the placement

of the signature on the handwritten documents. The circuit court’s order does not

take placement into consideration.

               It is our opinion that the trial judge correctly held that the
               purported will was not executed in conformity with the
               statutory requirements, particularly the requirement of

2
    KRS 394.400 provides:

        If a devisee or legatee dies before the testator, or is dead at the making of
        the will, leaving issue who survive the testator, such issue shall take the
        estate devised or bequeathed, as the devisee or legatee would have done if
        he had survived the testator, unless a different disposition thereof is made
        or required by the will.

                                                 -6-
             KRS 446.060 that the signature be ‘subscribed at the end
             or close of the writing.’

             This court has said that the purpose of the requirement
             that the testator’s signature be at the end or close of the
             will is ‘to indicate that his testamentary dispositions had
             been fully and completely expressed.’ Lucas v. Brown,
             187 Ky. 502, 219 S.W. 796. Page says that the purpose
             of such a requirement is ‘to do away with the necessity of
             inquiring into the actual intention of the testator in
             writing his name in the body of the will, and to avoid
             inquiry as to whether the instrument in question is
             intended as a preliminary draft or as a final and complete
             instrument.’ 2 Bowe-Parker, Page on Wills, Section
             1953, pages 153, 154. The Pennsylvania court has said
             that the purpose is ‘to indicate that it was the completed
             expression of the intention of the testatrix.’ In re Fisher’s
             Estate, 283 Pa. 282, 129 A. 90.

             It appears clear that the statute admits of no substitute for
             the proper placing of the signature as evidence of the
             completion of the testator’s testamentary expression.
             The fact that the intention of the testator of making a
             completed testamentary disposition may be clear from
             other evidence, such as oral declarations or the placing of
             the signature on the outside of a sealed envelope
             containing the testamentary papers, is of no avail.
             Miller’s Ex’r v. Shannon, Ky., 299 S.W.2d 105; Hall v.
             Edds, Ky., 305 S.W.2d 317.

Teater v. Newman, 472 S.W.2d 696, 699 (Ky. 1971).

             The need to sign a testamentary document at its end is of

consequence, to ensure that nothing has been added to the document that was not

the intention of the decedent. “Generally, a will is deemed signed at the end or at

the close if the clauses following the testatrix’s signature are neither dispositive of


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the estate nor essential to the validity of the will.” Bennett v. Ditto, 204 S.W.3d

145, 147 (Ky. App. 2006) (citation omitted). Here, the signatures appeared before

what can only be considered as dispositive clauses. KRS 446.060(1) clearly states

that “[w]hen the law requires any writing to be signed by a party thereto, it shall

not be deemed to be signed unless the signature is subscribed at the end or close of

the writing.”

                We hold that the notebook pages which contained both “Residual

Bequests” and “Specific Bequests” were not subscribed so as to be properly

considered the decedent’s holographic will or codicils to her properly executed, but

ineffective, form will. KRS 394.040. Thus, we find that the circuit court erred and

reverse its order and direct that it remand this matter to the district court for

probate following the laws of intestate succession, as the valid form will has lapsed

due to Mr. Vessells’ predeceasing Mrs. Vessells without issue, in compliance with

KRS 391.010; KRS 391.030; KRS 391.035.



                ALL CONCUR.



 BRIEF FOR APPELLANTS:                       NO BRIEF FOR APPELLEES.

 Jesse E. Wright
 Mayfield, Kentucky




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