EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, February 23, 2011

Take Good Care Of My Baby: Court Of Appeals Of Kentucky Deems Will Related Statements Inadmissible Under Rule 803(3)

Like its federal counterpart, Kentucky Rule of Evidence 803(3) provides an exception to the rule against hearsay for 

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

So, let's say that after executing a will, the testator tells (1) a friend how he had taken care of his wife and how she had always taken care of him; and (2) his reverend that his wife would be taken care of. Are these statements admissible under Rule 803(3)? According to the recent opinion of the Court of Appeals of Kentucky in Kemper v. Kemper, 2011 WL 557708 (Ky.App. 2011), the answer is "no." I disagree.

In Kemper, in 1986, W.S. executed a joint will with his wife, Norma Jean Kemper, who later passed away. Thereafter,

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.

Bonnie thereafter appealed, claiming, inter alia, that the circuit court erred in precluding her from admitting the statements mentioned in the introduction to this post. According to Bonnie, these statements should have been admissible under Kentucky Rule of Evidence 803(3). The Court of Appeals of Kentucky disagreed, concluding that

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.

I disagree. The language of Rule 803(3) makes clear that it allows for the admission of statements of memory or belief to prove the declarant's state of mind as it related to the execution of his will. And W.S.'s statements clearly were admitted for this purpose, i.e., to prove that his state of mind when he executed his will was that he wanted to take care of Bonnie. Now, the Court of Appeals of Kentucky was certainly correct that these statements did not directly prove the contents of the will or disprove his susceptibility to external influence. But these factors merely should have gone to the weight of the evidence, not the admissibility of the statements.



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