David Bartleson Drake, Individually and as of the Estate of Estelle B. Drake v. Debby Drake Wilson

• Court: Court of Appeals of Kentucky
• Decided: June 27, 2025
• Docket: 2024-CA-0610
• Status: Unpublished

Opinion

RENDERED: JUNE 27, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0610-MR

DAVID BARTLESON DRAKE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF ESTELLE B. DRAKE, DECEASED APPELLANT

APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 23-CI-00343

DEBBY DRAKE WILSON APPELLEE

OPINION AFFIRMING

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BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.

JONES, A., JUDGE: David Bartleson Drake appeals from an order of the

Henderson Circuit Court that granted summary judgment to his sibling, Debby

Drake Wilson, in this declaratory judgment action concerning the Last Will and Testament of their deceased mother, Estelle B. Drake. Upon careful review, we

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The record before us shows that, in the summer of 2022, Estelle took

steps to get her affairs in order. She contacted Independence Bank regarding her

various accounts, including the Agency Account at issue in this action. She also

contacted an attorney to revise her Last Will and Testament, previously executed in

2018. Estelle passed away on November 3, 2022. The 2022 Will was admitted

into probate in the Henderson District Court. It is undisputed that, at some point

prior to the execution of the 2018 Will, Estelle deeded her home to Debby. It is

also undisputed that the 2018 Will contained a specific provision that David would

receive the value of the home “off the top” of the Agency Account as an offset and

the remainder would be divided equally between Debby and David. However, the

2022 Will contained the following provision:

Item III

During my lifetime, I executed a Deed in favor of my daughter, DEBBY DRAKE WILSON, whereby I conveyed to her [my] residence at 2020 Brookstone Drive, Henderson, Kentucky, and retained a life estate. In light of my previously executing said Deed in favor of my daughter, DEBBY DRAKE WILSON, I have provided for my son, DAVID BARTLESON DRAKE, through the survivorship provisions of my investment

-2- account at Independence Bank (ending in 0755),[1] in consideration of my daughter, DEBBY DRAKE WILSON, receiving my residence.

Nevertheless, the record before us shows that the Agency Agreement

with Independence Bank had not been updated since signed by Estelle in 2014. It

contains the following provision: “8. Death of Principal. Upon my death, this

Agreement shall terminate and Agent shall distribute the property held hereunder

to the personal representative of my estate, after deducting any fees currently due

Agent.” In other words, the Agency Agreement directed the account be distributed

to Estelle’s estate, with no specific proportion to David. Under the residuary

clause of her Last Will and Testament, Estelle directed that

Item V

All of the rest, residue and remainder of my estate, personal, real and mixed, of whatsoever, nature and wheresoever situate, including furniture, cash accounts, savings accounts, or any personal property acquired by me both before and after execution of this my Will, I give, devise, bequeath to my children, DEBBY DRAKE WILSON and DAVID BARTLESON DRAKE, equally.

David filed the underlying declaratory judgment action in the

Henderson Circuit Court. In his petition, David requested the circuit court

interpret Item III of Estelle’s Will as directing that the entirety of the Agency

Agreement funds be distributed to him, rather than divided equally between David

1 The account ending in 0755 is the Agency Account.

-3- and Debby. Discovery ensued, including depositions of the attorney who drafted

the 2022 Will and an employee of Independence Bank who worked with Estelle in

2022. Debby filed a motion for summary judgment, which the circuit court

granted. This appeal followed.

II. STANDARD OF REVIEW

Summary judgment is appropriate where “the pleadings, depositions,

answers to interrogatories, stipulations, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Kentucky Rule

of Civil Procedure (CR) 56.03. The movant bears the initial burden of

demonstrating that there is no genuine issue of material fact in dispute. The party

opposing the motion then has the burden to present, “at least some affirmative

evidence showing that there is a genuine issue of material fact for trial.” Steelvest

Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). When a

circuit court grants a motion for summary judgment, the standard of review for the

appellate court is de novo because only legal issues are involved. Hallahan v. The

Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). We must consider the

evidence of record in the light most favorable to the non-movant (i.e., David) and

determine whether the circuit court correctly found there was no genuine issue as

-4- 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, 780 (Ky. App. 1996).

Finally, the construction, meaning, and legal effect of a written will is

also reviewed de novo. Combs v. Napier, 706 S.W.3d 161, 165 (Ky. 2024).

III. ANALYSIS

David raises two related arguments on appeal. He contends the circuit

court erred in granting summary judgment because there are inferences that can be

drawn from the evidence on which he could have prevailed, including that Estelle

intended to devise the entirety of the Agency Agreement to him, rather than an

equal division between the siblings.

Kentucky law is well-settled regarding the intent of the deceased when

it comes to interpretation of a will:

A testatrix’s intent controls the interpretation of her will. Clarke v. Kirk, 795 S.W.2d 936, 938 (Ky. 1990). To ascertain the testatrix’s intention, we first “examine the language of the instrument. If the language used is a reasonably clear expression of intent, then the inquiry need go no further.” Id. (citing Gatewood v. Pickett, 314 Ky. 125, 234 S.W.2d 489 (1950)). While canons of construction are available when that intent is unclear, a court need not resort to canons of construction when a testatrix uses clear and unambiguous language. Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010).

Combs, 706 S.W.3d at 164-65.

-5- However, in ascertaining intent, courts must also be cognizant of the

fact that, because the deceased’s

lips are sealed, the courts must be very careful not to make a redistribution of his property on the basis of parol proof that he had a different intention from that expressed, or because it would be more beneficial to one of the objects of his bounty if a different disposition was made.

Huffman v. Payne, 300 S.W.2d 785, 787 (Ky. 1957).

We must first look to the will itself to determine Estelle’s intent. To

that end, “[w]e have many times written that in arriving at the intention of testator

in construing wills the question in each case is not, [w]hat did testator mean or

intend to say? but, [w]hat is meant by what he said?” Reno’s Ex’r v. Luckett, 298

S.W.2d 674, 676 (Ky. 1956) (internal quotation marks and citation omitted). That

being said, “proof of the testatrix’s situation is permissibly introduced to

understand her intention from the language which she in fact used.” Combs, 706

S.W.3d at 165 n.3 (citation omitted).

David argues that Item III presents a latent ambiguity. “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.”

Carroll v. Cave Hill Cemetery Co., 189 S.W. 186, 190 (Ky. 1916) (citation

omitted). An example of a latent ambiguity is when the description contained in

the will could apply to more than one person or more than one piece of property.

-6- Jennings v. Jennings, 187 S.W.2d 459, 462 (Ky. 1945). We do not agree that Item

III contains a latent ambiguity because, as the circuit court found, Item III does not

devise any particular property to any particular person. At best, it acts as a notice.

The Agency Agreement itself also does not devise the entirety of the account to

David. The deposition of Independence Bank employee Kara Hudnall indicates

that in late June or early July 2022, Estelle did update an IRA account, dividing it

85% to David and 15% to Debby upon her death. However, it is undisputed that

Estelle did not update the survivorship clause in the Agency Agreement. The

attorney who drafted the 2022 Will testified that an initial draft contained

essentially the same provision as Item III in the 2018 Will, but Estelle approved the

change in language that ultimately appeared as Item III in the 2022 Will. She also

indicated that Estelle had been to the bank prior to making revisions to her Will,

and the attorney was unaware that the Agency Account had no beneficiaries named

when she drafted the Will.

The plain language of Estelle’s Last Will and Testament does indicate

that she intended to provide for both David and Debby. However, if she intended

for David to have a larger portion of the Agency Account for any reason, she could

have changed the survivorship provision in the Account Agreement or included a

specific provision in the Will that directed more funds be distributed to David,

similar to her 2018 Will. Estelle did neither of those things. We agree that the

-7- wording of Item III could be more concise, and is also superfluous, but because it

does not actually devise any property, it is of little matter. Accordingly, we agree

with the circuit court that the Agency Account is to be divided equally pursuant to

Item V of the probated Will. There is simply no evidence contained within the

Will of Estelle’s intent to leave the entire Agency Account to David; nor is there a

latent ambiguity. We also understand that David believes Estelle should have

divided her estate in a certain way. However, “the opinions of mankind as to what

some other person should have done, or the best and most proper way to

accomplish a purpose, are as various oftentimes as there are different persons.”

Carroll, 189 S.W. at 189 (citations omitted).

IV. CONCLUSION

For the foregoing reasons, the order of the Henderson Circuit Court is

affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Harry L. Mathison Charles Edward Clem Henderson, Kentucky Henderson, Kentucky

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