RENDERED: JULY 10, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0257-MR
JEAN H. RAMSEY APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 19-CI-00263
FRANK RAMSEY, III, AS
EXECUTOR OF THE ESTATE OF
FRANK V. RAMSEY, JR.; CLIFFORD
CECIL RAMSEY; FRANK RAMSEY,
III; FRANK RAMSEY, III, AS
TRUSTEE OF THE FRANK V.
RAMSEY, JR. IRREVOCABLE
TRUST AGREEMENT DATED
AUGUST 19, 2013; AND FRANK
RAMSEY, III, AS TRUSTEE OF THE
SARAH RAMSEY GST EXEMPTION
TRUST APPELLEES
AND
NO. 2025-CA-0267-MR
CYNTHIA RAMSEY COOPER APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 19-CI-00263
FRANK RAMSEY, III, AS
EXECUTOR OF THE ESTATE OF
FRANK V. RAMSEY, JR.; CLIFFORD
CECIL RAMSEY; FRANK RAMSEY,
III; FRANK RAMSEY, III, AS
TRUSTEE OF THE FRANK V.
RAMSEY, JR. IRREVOCABLE
TRUST AGREEMENT DATED
AUGUST 19, 2013; AND FRANK
RAMSEY, III, AS TRUSTEE OF THE
SARAH RAMSEY GST EXEMPTION
TRUST APPELLEES
AND
NO. 2025-CA-0440-MR
FRANK RAMSEY, III, AS
EXECUTOR OF THE ESTATE OF
FRANK V. RAMSEY, JR.; CLIFFORD
CECIL RAMSEY; FRANK RAMSEY,
III; FRANK RAMSEY, III, AS
TRUSTEE OF THE FRANK V.
RAMSEY, JR. IRREVOCABLE
TRUST AGREEMENT DATED
AUGUST 19, 2013; AND FRANK
RAMSEY, III, AS TRUSTEE OF THE
SARAH RAMSEY GST EXEMPTION
TRUST CROSS-APPELLANTS
CROSS-APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 19-CI-00263
-2-CYNTHIA RAMSEY COOPER CROSS-APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ECKERLE, A. JONES, AND L. JONES, JUDGES.
ECKERLE, JUDGE: These three appeals raise numerous, familial issues with an
irrevocable trust and a postnuptial agreement. After considering the briefs,
relevant law, and oral argument, we provide the following facts, law, and rulings.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
The Trial Court record underlying these appeals is immense,
consisting of 40 volumes of record filling four large boxes. The parties’ briefs
have a combined length approaching 200 substantive pages. In the interests of
judicial economy, we shall provide only what we perceive to be the essential,
underlying history. Similarly, to avoid making this already-lengthy Opinion
completely unwieldy, we shall not discuss each argument or citation to authority
but will endeavor to provide a full analysis of the significant issues. As we have
previously done in similar situations, we “will discuss only the arguments and cited
authorities we deem most pertinent, the remainder being without merit, irrelevant,
or redundant.” Schell v. Young, 640 S.W.3d 24, 29 (Ky. App. 2021).
-3-This combined appeal and the underlying cases stem from the union
of Frank V. Ramsey, Jr. (“Husband”) and Appellant, Jean H. Ramsey (“Wife”),
who had been married for over 60 years when Husband died in 2018. Husband
and Wife had three “Children”: Appellant/Cross-Appellee, Cynthia Jean Ramsey
Cooper (“Daughter”); Appellee/Cross-Appellant, Frank “Tripp” Ramsey, III
(“Trustee”), who would become an Executor of the Estate and Trustee; and
Appellee/Cross-Appellant, Clifford Cecil Ramsey.
In approximately 2011, Wife initiated divorce proceedings. However,
in 2013 Husband and Wife entered into a settlement agreement (“the Agreement”),
the net result of which would leave them remaining married but living separately.
The Agreement provided specified assets to Wife, including two condominiums;
two vehicles; jewelry; several bank accounts; various items of personal property;
and a substantial, lump-sum, cash payment. Wife agreed that her receipt of that
specific property constituted a “full and final settlement of all of her marital rights
with respect to the restoration of non-marital property” and “the allocation of
marital property . . . .” Trial Record (“R.”) at 106. The Agreement stated that it
“shall be binding” on Husband’s and Wife’s “respective estates, heirs, successors,
assigns, and personal representatives.” R. at 108. In the Agreement, Husband and
Wife each waived the right to renounce the other’s will. Relevant here, Wife also
waived her dower rights. The parties attached a list of assets to the Agreement
-4-(“the List”) “setting forth all of the property owned or controlled by the parties
(both individually and jointly).” R. at 103.
Particularly at issue in these appeals, the Agreement also required
Husband to allocate and distribute specified assets to Wife and then to create a
trust for Children’s benefit upon Husband’s death. The Agreement describes the
parties’ intent to create an irrevocable trust (“the Trust”), as follows in full:
It is the parties’ express intention to transfer certain
assets owned and controlled by Husband to an
irrevocable trust for the benefit of Husband, for life, with
remainder as Husband may appoint among his
descendants (provided Wife consents to the
appointment), and in default of appointment, for the
equal benefit of the parties’ three children, Frank V.
Ramsey, III, Clifford Cecil Ramsey, and Cynthia Jean
Ramsey Cooper (hereinafter “the children”), or if any
child predeceases Husband, the descendants, per stirpes,
of the deceased child. In furtherance of this mutual
intent, to which both parties agree to be bound, it is
agreed that within thirty (30) days of execution of this
Agreement, Husband shall cause the 899.1 shares of
Dixon Bank Stock and the approximately 1,248.68 acres
of farm property in Webster County, Kentucky (listed
separately on Exhibit “A” as “273.68 acres Lisman
Road” and “975 acres, Webster County, Kentucky”) to
be transferred into the irrevocable trust (“Trust”),
attached hereto as Exhibit “B”, which Husband agrees to
execute and deliver to Wife contemporaneously with this
Agreement, and shall provide proof of same to Wife.
R. at 104-05.
The document creating the Trust was attached to the Agreement. The
Trust begins by noting that Husband would serve as initial trustee and then names
-5-Trustee as his successor. All first-person references in the Trust are understood to
reference Husband, as the party responsible for legal creation of the Trust. Section
3.2 of the Trust provides that during Husband’s lifetime, the “[n]et income of the
trust will be distributed to” him. R. at 117. Article 5 of the Trust, titled “Division
of Trust After My Death,” substantively then provides in relevant part:
5.1 Division of Trust Assets. Assets administered by
this Article will be divided in equal shares, one for each
of my then living children and one for each of my
deceased children with descendants then living, and held
or distributed as provided herein.
R. at 118. Notably, the record makes clear that Husband and Wife negotiated the
creation of the Trust, as well as what assets would be transferred into it, through
experienced legal counsel while reaching the Agreement.
In 2014, approximately one year after execution of the Agreement,
Husband executed his will, which explicitly states that it contains no provisions for
Wife because she “has been provided for by a written agreement made during our
marriage.” R. at 133. Husband’s will similarly states that it contains no provisions
for Daughter “for reasons that need not be expressed herein.” Id. Finally,
Husband’s will names Trustee as the personal representative, or Executor, of
Husband’s Estate and Children, or at least Trustee and Clifford, as the primary
beneficiaries. Section two of Husband’s will addresses the topic of Estate taxes by
directing that his
-6-death taxes, if any, be paid out of my residuary estate,
other than apportionment property, without proration and
my personal representative shall not seek contribution
toward or recovery of any such payments. Death taxes
means any estate or inheritance taxes, but not generationskipping transfer taxes, imposed under the laws of any
jurisdiction due to my death on any property passing by
reason of my death whether or not such property passes
under this will. With regard to apportionment property,
my personal representative shall take such actions as are
necessary to obtain reimbursement with respect to
apportionment property, including withholding
distribution. Apportionment property means (a) any
property titled in the Frank V. Ramsey, Jr. Irrevocable
Trust Agreement dated August 19, 2013, (b) any property
with respect to which my personal representative may be
entitled to recover federal estate tax under Internal
Revenue Code Section 2207, 2207A, or 2207B . . . .
R. at 133-34. The second codicil also states:
This codicil is intended to clarify my intent in regard to
paragraph 2 of my Last Will and Testament. It is my
intent that my children pay to my estate the federal estate
taxes owed on the inheritance they receive from me
under [the Trust] . . . . As my estate will be required to
pay the federal estate taxes owed on my estate within
nine (9) months of my death, I direct my personal
representative to receive reimbursement to my estate for
such federal estate taxes at or prior to the time of filing
my federal estate tax return.
R. at 141.
It is uncontested that at Husband’s death in June of 2018, the Trust’s
assets were valued at over $21,000,000, and the federal estate tax owed on those
-7-assets was slightly over $6,000,000. After Husband’s death, Trustee assumed his
roles as set forth in both the Trust documents and in Husband’s will.
In March of 2019, Wife and Daughter (collectively, “Plaintiffs”) filed
a complaint against Trustee (individually and in his capacities as Executor of the
Estate and Trustee) and Clifford Cecil Ramsey (collectively, “Defendants”) in the
Fayette Circuit Court. Although both sons are named as defendants in the suit, a
majority of the counts allege acts of breach, negligence, or fraud specifically by
Trustee in administering either the Trust or Husband’s Estate. Because the
particular language of many of these counts are at issue in the appeals sub judice,
they will be discussed in detail at the relevant sections in this Opinion.1
Upon Defendants’ motion, the Fayette Circuit Court transferred the
action to the Hopkins Circuit Court, because Husband’s Estate was being probated
in Hopkins County. Hereafter, references to “the Trial Court” are to the Hopkins
Circuit Court. Defendants also filed counterclaims against Daughter alleging that
she had violated the “no-contest” provisions of the Trust and thus should be
deemed to have predeceased Husband. Moreover, Defendants sought a judgment
1
Not all counts of the complaint have been raised on appeal, notably Counts VI, IX, and X. The Trial Court issued summary judgment to Defendants on these counts, and they were not raised in Wife or Daughter’s appeals. Accordingly, they will not be discussed in any detail in this Opinion, except where relevant to the issues on appeal.
-8-requiring that Daughter reimburse the Estate for the taxes owed on her share of the
Trust’s assets.
Over five years of litigation followed, in which the parties made
numerous motions for dismissal, to file and amend counterclaims, and for
summary judgment. As discussed below, many of the counts of the original
complaint and the counterclaims were resolved wholly or in part by grants of
summary judgment to one party. However, as of late 2024, the parties and the
Trial Court determined that there remained issues on three counts of the complaint
that would require submission to a jury. As the trial date on the remaining claims
approached, Defendants filed a motion in limine seeking, among other requests, to
exclude evidence of administrative fees paid to Trustee and of a previous grant of
summary judgment to Plaintiffs that Trustee had breached the irrevocable Trust by
delaying distribution of the Trust assets. The Trial Court denied the motions.
In December of 2024, the Trial Court conducted a jury trial on the
remaining claims. After a multi-day trial that involved witness and expert
testimony, as well as contentious motion practice over proposed jury instructions,
the Trial Court submitted the case to the jury. Ultimately, the jury awarded
Daughter $103,000 for Trustee’s breach of his fiduciary duty and breach of the
Trust.
-9-In January of 2025, Defendants asked the Trial Court to include
language in the final judgment directing Daughter to pay a sum slightly over
$2,000,000 to Husband’s Estate for her share of the taxes based on a previous grant
of summary judgment by the Trial Court to Defendants on their counterclaim.
Meanwhile, Plaintiffs’ tendered final judgment reflected only the jury’s verdict
awarding Daughter $103,000 and omitted discussions of any other rulings for
either side. The Trial Court issued the final judgment requested by Plaintiffs and
denied Defendants’ motion to include language directing Daughter to pay any
amount.
These appeals followed. Case No. 2025-CA-0257-MR is an appeal
filed solely by Wife challenging the Trial Court’s summary judgment to
Defendants on Counts I, VII, and VIII of the complaint, which largely involves
Husband’s alleged failure to disclose assets during the process of the Separation
Agreement. Case No. 2025-CA-0267-MR is an appeal filed solely by Daughter
that focuses on the Trial Court’s conclusion that Defendants were entitled to seek
reimbursement from her for her share of the taxes. Case No. 2025-CA-0440-MR is
a cross-appeal filed by Defendants against Daughter, challenging numerous
decisions made by the Trial Court.2
2
Defendants also filed a cross-appeal against Wife, Case No. 2025-CA-0412-MR. However, in November of 2025, we granted Defendants’ motion to dismiss that cross-appeal once Wife confirmed she did not seek to resolve any other claims on appeal.
-10-Before turning to the merits of these appeals, we must first address
Daughter’s procedural argument that Defendants can only raise issues expressly
contained in the final judgment and order denying Defendants’ motion to alter,
amend, or vacate because those are the only judgments specified in Defendants’
prehearing statement. The version of Kentucky Rules of Appellate Procedure
(“RAP”) 22(C)(2) in effect at the time of the prehearing statement provided that a
party was “limited on appeal to issues identified in the prehearing statement . . . .”
The current version, which took effect on April 1, 2026, does not contain this
provision.
It is a bedrock principle of appellate law that “one can only appeal
from a final judgment and that all interlocutory orders or judgments are
‘readjudicated finally’ upon entry of a final judgment disposing of all issues
making it unnecessary to name any judgment in the notice of appeal other than the
final one.” Blair v. City of Winchester, 743 S.W.2d 28, 31 (Ky. App. 1987). See
also Kentucky Rules of Civil Procedure (“CR”) 54.02(2) (“When the remaining
claim or claims in a multiple claim action are disposed of by judgment, that
judgment shall be deemed to readjudicate finally as of that date and in the same
terms all prior interlocutory orders and judgments determining claims which are
not specifically disposed of in such final judgment.”). Thus, the final judgment
-11-inherently encompasses the issues previously resolved by the Trial Court that
Defendants seek to challenge.
Moreover, Defendants attached as exhibits to their prehearing
statement numerous, contested rulings of the Trial Court. Defendants’ notice of
cross-appeal further mentions the decisions at issue, and Defendants attached
copies of those decisions to the notice. We thus reject Daughter’s limiting
procedural argument and proceed to consider the merits of the appeals before us.
II. STANDARD OF REVIEW
As noted in the procedural history above, the majority of issues on
appeal in these combined cases relate to the Trial Court’s grant of summary
judgment on various counts in the complaint and counterclaims. We recently
summarized Kentucky’s familiar summary-judgment standards as follows:
Summary judgment is governed by CR 56.03, stating that
“if 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 . . . the moving party is entitled to a
judgment as a matter of law.” In evaluating a party’s
entitlement to summary judgment, a Trial Court must
view the record in the light most favorable to the
nonmoving party. Steelvest, Inc. v. Scansteel Service
Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). If it appears
impossible that the nonmoving party will be able to
produce evidence at trial warranting a judgment in her
favor, then summary judgment is proper. Id. (citing
Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky.
1985)) (stating that summary judgment “is only proper
where the movant shows that the adverse party could not
-12-prevail under any circumstances”). To combat summary
judgment, the opposing party must present “at least some
affirmative evidence showing that there is a genuine
issue of material fact for trial.” Steelvest, 807 S.W.2d at
482.
Crowder v. Yussman, 724 S.W.3d 772, 778 (Ky. App. 2025). “An issue of
material fact is ‘genuine’ at the summary judgment phase when discovery has
revealed facts which make it possible for the non-moving party to prevail at trial.”
Kearney v. University of Kentucky, 638 S.W.3d 385, 397 (Ky. 2022).
“Determination that a fact is material or immaterial rests on the substantive law’s
identification of which facts are critical and which facts are irrelevant.” Id.
(citations omitted). We review the Trial Court’s grant of summary judgment de
novo. Id. at 398.
With this standard in mind, we will address the substantive law as
necessary for each claim on appeal in the relevant portion of the Opinion. For the
few issues where summary judgment is not involved, the relevant standard of
review will be addressed individually below.
III. ANALYSIS
A. Wife’s Appeal of Summary Judgment to Defendants on
Counts I, VII, and VIII of the Complaint
Because of the fundamental importance of the Agreement and the
Trust to all of the combined appeals in this case, we must begin with Wife’s appeal
-13-from the Trial Court’s grant of summary judgment to Defendants on Counts I, VII,
and VIII of the complaint, which seeks to invalidate portions of the Agreement for
breach of contract, fraud, or negligence by Husband. Although the other issues on
appeal are not directly intertwined with this one, our decision on this issue
significantly alters the factual posture of the case should we find in Wife’s favor.
Accordingly, it must be resolved prior to consideration of Daughter’s appeal and
Defendants’ cross-appeal.
In order to examine the merits of Wife’s appeal, we must review the
terms of the Agreement and the process used to create the Trust. As part of the
negotiation process, Wife and Husband, through counsel, identified assets that
would be subject either to the filed divorce proceedings or the negotiated
postnuptial agreement. Both Husband and Wife represented that they had
examined the List and that it was “an accurate reflection of the property currently
owned or controlled” by each. R. at 103-04. Similarly, the Agreement provided
that, “after being duly sworn[,]” Husband and Wife “represent[] and warrant[] to
the other” that the List “contains a complete listing of all known assets and debts,
marital and non-marital, owned and owed by both of them.” R. at 104.
The List contains numerous assets, such as “273.68 acres Lisman
Road” (valued at $273,000) and “975 acres, Webster County, Kentucky” (valued at
$3,500,000.00). R. at 113. The List also denotes ownership of a “1/2 interest
-14-256.42 acres of mineral rights, Hopkins County” and “[m]ineral rights described in
DB 624, page 150, Hopkins County[.]” Id. The List does not specify the value of
either of those two mineral ownership interests; instead, the List simply states that
each is “not valued[.]” Id. The List assesses the value of the properties that were
to be transferred to the Trust at $13,663,100.
In the final version of the Agreement, Husband and Wife “waive[d]
any further financial disclosures from the other.” Id. Section 14 of the Agreement
reiterates that Husband and Wife had each “made full and complete disclosure to
the other of all assets and liabilities, both marital and nonmarital” and “based upon
said representations, [they] have agreed to enter into this Agreement according to
the terms thereof.” R. at 108. However, that section also recognizes that “certain
of the assets owned by the parties may be difficult to value . . . .” Id. Thus, the
Agreement provides that “the fact that such assets could arguably have a different
fair market value than heretofore understood or represented has been fully and
adequately considered by the parties[,] and any such potential difference in value
shall not be considered a failure to disclose the asset” or otherwise affect the
validity of the Agreement. Id.
Nonetheless, the Agreement did not completely foreclose Husband
and Wife from seeking relief in litigation. Section 15 provides in relevant part that
if either Husband or Wife “has failed to disclose any property” or made a
-15-“materially inaccurate” representation, then “the defaulting and/or breaching party
shall be liable to the other for said default or breach.” R. at 109. The breaching
party must “indemnify and hold the other [party] harmless of and from any and all
liabilities, claims, damages and expenses . . . arising out of or in any way
connected with any such default, breach, failure to perform, misrepresentation or
failure to disclose.” Id. In Section 21 of the Agreement, “both parties
acknowledge that they have been advised to obtain independent tax advice from a
Certified Public Accountant regarding any tax consequences or filing obligations
arising from the provisions contained herein.” R. at 110.
In the complaint filed by Plaintiffs, Count I sought to enforce Section
15 of the Agreement and asserted that Husband breached the Agreement by failing
to provide a full and accurate disclosure of assets, omitting certain mineral rights,
and misrepresenting the value of others. The complaint specifically alleges:
52. The mineral rights for real property located in
Hopkins County is listed as “not valued” in the [List]
attached to the Separation Agreement. In connection
with the Divorce Proceeding Frank V. Ramsey, Jr.,
submitted a Preliminary Verified Disclosure Statement
. . . . Frank V. Ramsey, Jr., set forth in his Verified
Disclosure that the mineral interests for said property had
been mined to exhaustion.
53. Subsequent to the Separation Agreement being
entered into Frank V. Ramsey, Jr., continued to receive
substantial amounts of royalties for the mineral rights to
the Hopkins County real property.
-16-54. In the inventory for the Estate of Frank V. Ramsey,
Jr., said mineral rights to the Hopkins County real
property are listed and valued in excess of $600,000.00
by the Executor.
55. Frank V. Ramsey, Jr., further failed to assess any
value to the mineral rights for the real property located in
Webster County in the [List] attached to the Separation
Agreement. Frank V. Ramsey, Jr.’s Preliminary Verified
Disclosure Statement states that the fair market value of
the real property is to be $3,500,000.00. Said value
approximates the value set forth in the [List].
56. Following the death of Frank V. Ramsey, Jr. said
mineral rights to the Webster County real property were
appraised . . . as of the date of death of Frank V. Ramsey,
Jr., for $3,824,000.00. In addition, said firm appraised
the surface rights of the Webster County real property for
$5.55 million as of the date of death of Frank V. Ramsey,
Jr.
57. The omissions and representations by Frank V.
Ramsey, Jr., were material in nature and constitute a
failure to provide full disclosure in entering into the
Separation Agreement.
R. at 84-85. Count VII sought to set aside portions of the Agreement that
prevented Wife from renouncing Husband’s will due to his alleged failure to
disclose these assets. R. at 91-94. Similarly, Count VIII alleged fraud on Wife’s
dower interests for Husband’s alleged failure to honor the agreement to treat all
-17-three children equally while transferring significant assets into a separate revocable
trust not subject to the provisions of the Agreement. R. at 94-96.3
In 2023, Wife and Defendants sought separate summary judgment on
Wife’s claims in Counts I, VII, and VIII based on Husband’s failure to disclose
mineral rights. As part of the extensive filings made by both parties in support of
these motions, Wife submitted an affidavit asserting that she had relied upon
Husband’s asset disclosure when signing the Agreement and had not then known
about the valuable mineral rights or payments for the land in Hopkins and Webster
Counties. R. at 3331-32. However, the Trial Court granted summary judgment to
Defendants on each of those counts of the complaint, holding:
the express language, waivers and acknowledgements
contained in the [Agreement] entered [into] between
Frank and Jean Ramsey while represented by extremely
competent and well[-]respected legal counsel on both
sides, is controlling and precludes, as a matter of law,
Plaintiffs’ factually unsupported claims as to Counts I,
VII and VIII of Plaintiffs’ Complaint.
R. at 4193.
On appeal, Wife contends that the Trial Court erred in granting
judgment to Defendants on her claims that Husband materially breached the
3
Although each count also contains allegations of breach or fraud due to provisions in Husband’s will regarding the reimbursement of Estate tax, Wife’s appeal focuses solely on the grant of summary judgment based on Husband’s alleged failure to disclose assets. Accordingly, we will not address those tax issues in this portion of the Opinion and maintain focus solely on the issues raised on appeal of this particular judgment.
-18-Agreement by failing to denote properly and completely the mineral-rights-based
assets in the List. First, with regard to Webster County, she alleges that Husband
entirely omitted his ownership interest in mineral rights, which were valued at
approximately $3,800,000 after his death. Instead, Husband had only listed two
parcels of Webster County land and valued them together at slightly over
$3,750,000 without reference to any mineral rights. Wife asserts that she was
entirely unaware of these rights when she signed the Agreement and that the Trial
Court erred in failing to consider an affidavit she provided as evidence of this
disputed fact. Second, regarding Hopkins County, Wife also contends that she
relied on Husband’s assertion in the List that mineral rights had only a nominal
value because the land had been mined to exhaustion. However, she alleges that
he collected over $3,300,000 in royalty payments from that land between 2011 and
his death in 2018.
Wife argues that these two List omissions constitute material
breaches, or at least a genuine issue of material fact as to the breaches, which
should allow her to withdraw from “only the provision of the Separation
Agreement where she relinquished her renunciation and dower rights.” Wife’s
Reply Brief, p. 6. In other words, Wife does not wish to set aside the portion of the
Agreement requiring creation of the Trust but seeks to alter the disposition of the
remainder of Husband’s Estate.
-19-In return, Defendants assert that the evidence fails to establish that
Husband intentionally failed to disclose assets or misled Wife as to their value.
Instead, they contend that the evidence proves that Wife had knowledge that the
properties in question could have contained valuable mineral rights but failed to
pursue independent valuation or to take further steps to secure that interest if she
chose. Since the only material facts at issue related to discrepancies in value that
the Agreement foreclosed Wife from challenging, Defendants argue that the Trial
Court properly granted their motion for summary judgment as to Counts I, VII, and
VIII.
Although both parties moved for summary judgment on these counts,
the Trial Court’s grant of Defendants’ motion means that we must review the
evidence in favor of Wife as the non-prevailing party. However, we also note that
Wife must still provide some affirmative evidence that there exists a genuine issue
of material fact. Steelvest, 807 S.W.2d at 482. To support her claim that there are
genuine issues of material fact precluding summary judgment, Wife primarily
relies on the affidavit filed in October of 2023, which provides as follows:
6. During our marriage I was not consulted regarding
financial decisions [Husband] made, including, but not
limited to real property and mineral rights.
7. During the divorce proceeding I was provided with
[Husband]’s Preliminary Verified Disclosure Statement
-20-. . . . I read [Husband]’s Preliminary Verified Disclosure
Statement and had no reason to question his assertions
therein.
8. When I signed the Separation Agreement that
resolved the divorce action, I relied on [Husband]’s
Preliminary Verified Disclosure Statement which stated
that the Hopkins County mineral rights had been mined
to exhaustion and were of nominal value. When I signed
the above mentioned Separation Agreement I further
relied on [Husband]’s Preliminary Verified Disclosure
Statement which document stated he was disclosing all
assets in which he held an interest. When I signed the
Separation Agreement I relied upon [Husband]’s
disclosures regarding his finances and further relied upon
those disclosures not failing to list any significant assets
in which he held an interest.
9. I further relied on [Husband]’s preparation of the
[List] attached to and incorporated into the Settlement
Agreement. I relied on [Husband]’s preparation of the
[List] disclosing all assets he held an interest in, and that
he did not fail to disclose any significant assets he held
an interest in.
10. As to the Hopkins County mineral rights, I did not
question those being listed by [Husband] as “not valued”
in the [List] because he had represented to me in his
Preliminary Verified Disclosure Statement that they had
been mined to exhaustion and were of nominal value.
11. At the time of entering into the Separation
Agreement, I did not know [Husband] was still receiving
royalty payments for the Hopkins County mineral rights.
12. At the time of entering into the Separation
Agreement, I did not know there were substantial mineral
rights associated with the Webster County property.
-21-R. at 3331-32. At oral argument, counsel for Wife asserted that the affidavit
supports Wife’s claim that she never possessed any true understanding of
Husband’s complex business and property interests during 60 years of marriage
and that she had relied in good faith on his representations once the union was
broken.
However, Defendants assert that the Trial Court correctly disallowed
this affidavit as evidence due to conflicts between its contents and Wife’s own
previous deposition testimony offered in May of 2022. During that deposition,
Wife testified as follows:
Q. Were you aware during your marriage with Mr.
Ramsey that he was receiving money for mineral rights
for coal in property, real estate that he owned?
A. Was I aware? I’m asking myself. Was I aware of all
this? I don’t know if I was aware or not.
Q. Let me rephrase the question. Did you know Mr. –
during your marriage did you know Mr. Ramsey was
getting checks related to the sale of coal on land that he
owned?
A. He probably told me. I mean, I didn’t –
[Wife’s counsel]: Try to answer the question he asked;
okay? He’s asking you if you knew. If you don’t – if
you don’t know, then just say you don’t know. If you do
know, then –
A. I’m not certain. I’m not.
-22-Wife’s Depo., pp. 28-29. Neither Wife’s counsel nor Defendants’ counsel asked
pertinent follow-up questions to probe more specifically what actual knowledge
Wife possessed or lacked regarding the mineral royalties. Notably, counsel for
both parties encouraged a review of this deposition testimony in support of their
positions. Although counsel for Wife asserts that the affidavit only clarifies the
testimony offered in that deposition, a review of the transcript is most consistent
with Defendants’ interpretation that Wife clearly demonstrated no affirmative
memory of whether she had knowledge of any of Husband’s interests in mineral
rights. Throughout her deposition, Wife frequently struggled to understand
questions posed to her, and she generally testified that she had no specific
recollection of specific pieces of evidence shown to her.
Although Defendants cited only federal cases to support their position
that the Trial Court properly disallowed the affidavit, we have previously held that
“[w]hile a post-deposition affidavit may be admitted to explain deposition
testimony, an affidavit which merely contradicts earlier testimony cannot be
submitted for the purpose of attempting to create a genuine issue of material fact to
avoid summary judgment.” Gilliam v. Pikeville United Methodist Hosp. of
Kentucky, Inc., 215 S.W.3d 56, 62-63 (Ky. App. 2006) (internal quotation marks,
footnotes, and citations omitted).
-23-Here, Wife’s subsequent affidavit conflicts with her deposition
testimony, where she averred that she did not know – one way or the other –
whether Husband received mineral royalty checks during the marriage. By
contrast, in the affidavit, which was not subject to cross-examination, she explicitly
and conclusively stated that she had not been aware at the time of the Agreement
that Husband was in fact receiving mineral royalties. Given the discrepancy
between the deposition testimony and affidavit, we find the Trial Court properly
concluded that the subsequent affidavit could not be used to create an issue of fact
where none previously existed. Id.
Without the affidavit, the Trial Court was left to determine from the
remaining evidence whether there existed a genuine issue of material fact as to
breach of the Agreement. In order to show breach, Wife must offer some evidence
that Husband failed to disclose the Webster mineral rights or provided a materially
inaccurate representation of the Hopkins mineral rights. The Trial Court
determined that the available evidence failed to do so.
Despite Wife’s deposition testimony that she could not recall whether
she had knowledge of any interest Husband had in mineral rights, Defendants have
provided evidence suggesting that Wife did have previous knowledge of certain
mineral rights prior to entering into the Agreement. This evidence includes Wife’s
signature on a Hopkins coal lease between Alliance Resource Properties, L.L.C.
-24-and both spouses, as well as annual income from advance coal royalties with
checks made out to both Husband and Wife. See R. at 2311-24 and 3783.
Although counsel for Wife asserted at Oral Argument that this did not necessarily
prove Wife’s knowledge of the specific mineral right interests on the subject
properties, the record contains no affirmative evidence to contradict the conclusion
that Wife would reasonably have been aware of her own tax returns, bank
statements, and legal filings, all of which include references to interests in mineral
rights. R. at 2311-24, 3783, and 4282-83. Although the Trial Court did not have
the benefit of all of this evidence at the time summary judgment was entered, the
full record on appeal remains consistent with the conclusion that Wife did have
knowledge of at least some of these interests at the time she signed the Agreement
and that she had the opportunity to pursue further valuation prior to signing.
Similarly, regarding the Webster County property, no one disputes the
lack of any active mineral leases on that property until 2018, approximately five
years after the Agreement was executed. In June of 2023, Trustee submitted an
affidavit about the Webster County mineral rights, averring in relevant part that:
With the exception of a fractional interest in a dormant,
non-producing lease dated 1970 on a 37-acre tract
acquired by [Husband] in 1991, there was no coal or
other mineral rights lease in place for any property
owned by [Husband] in Webster County, Kentucky at the
time the Separation Agreement was negotiated and
executed. The 37-acre tract purchased by [Husband] in
1991 was not mined at any point and remained dormant
-25-between his purchase and the execution of the Separation
Agreement.
R. at 2447. At his deposition, Trustee was asked whether he knew the reasons that
the mineral rights for the 975 acres in Webster County were not denoted in the
List, and he answered in relevant part that “there was no lease, and mineral rights
basically don’t have a value until you have a lease.” Trustee Depo., p. 147.
Indeed, Wife does not challenge the lack of an active lease for the
Webster County land in the ten years preceding the Agreement. Wife also fails to
identify clearly what additional valuation of that property Husband failed to
provide. Kentucky tax law does not separately value unmined minerals that are
“owned in their entirety by the surface owner” who is not “engaged in the
severance, extraction, processing or leasing of mineral or other energy
resources[,]” and the surface land is primarily being used for other purposes.
Kentucky Revised Statutes (“KRS”) 132.820(1). The mere fact, standing alone,
that the property turned out to have profitable minerals under the surface – which
were not mined until many years later – does not equate to Husband’s foresight or
secreting of otherwise disclosable information.
Ultimately, a breach of contract claim cannot succeed unless the
contract has been materially breached. See, e.g., Barnett v. Mercy Health
Partners-Lourdes, Inc., 233 S.W.3d 723, 727 (Ky. App. 2007). Wife has failed to
meet that baseline, fundamental showing by her inability to establish that Husband
-26-made material omissions regarding the mineral rights. At no point has Wife
submitted evidence that Husband had access to any more information about the
potential profitability of mining on any of the subject property than she had access
to as his spouse – or equal bargaining partner across the table during separation
proceedings. Both parties had access to information suggesting that mineral rights
could be at issue on the subject properties, and in fact Wife requested changes in
conveyance of the Webster property to the Trust to reflect the Trust’s control over
any future mineral rights on that land. Both parties had the opportunity to pursue
independent valuation of all assets, including any potential mineral rights. And
crucially, both parties had the benefit of excellent legal counsel and agreed to the
provision that any subsequent discrepancy in assessed value of assets would not
constitute a breach absent any failure to disclose or material misrepresentation.
Even if we accept Wife’s assertion that she had little direct knowledge
or understanding of Husband’s business interests and property during their
marriage, we find no error in the Trial Court’s conclusion that the terms of the
agreement preclude the recovery she seeks. Under Kentucky law,
The construction and interpretation of contracts,
including questions of ambiguity, are matters of law
subject to de novo review. The primary objective in
construing a contract is to effectuate the intentions of the
parties. A contract must be construed as a whole, giving
effect to all parts and every word if possible. Absent an
ambiguity, the parties’ intentions must be discerned from
the four corners of the instrument without resort to
-27-extrinsic evidence. A contract is ambiguous if a
reasonable person would find it susceptible to different or
inconsistent interpretations. The fact that one party may
have intended different results is insufficient to interpret
a contract at variance with its plain and unambiguous
terms.
AnyConnect US, L.L.C. v. Williamsburg Place, L.L.C., 636 S.W.3d 556, 561-62
(Ky. App. 2021) (internal quotation marks and citations omitted). In this case,
Husband and Wife entered into a postnuptial agreement, which Kentucky courts
have long enforced under the principles of contract law. Davis v. Davis, 489
S.W.3d 225, 227 (Ky. 2016); see also Smith v. Smith, 295 Ky. 50, 173 S.W.2d 813,
815 (1943). As part of the Agreement, Wife waived “formal disclosures and
discovery,” declined “any further disclosures” from Husband, and voluntarily
entered into the contract under advice of counsel with the affirmation that she
“fully understood” all of its provisions. R. at 104, 108, and 110. These provisions
are unambiguous, and there is no evidence that would cause us to disrupt them
now.
Moreover, as counsel stated at oral argument, Wife never used the
word “misrepresentation” in her deposition. She did not seek to depose Husband
before he died. She did not hire an appraiser to look at the assets, even though the
litigation dragged on for years. She may think now that she made a bad bargain
-28-then, but she has not shown it to be unconscionable.4 Husband was wealthy before
the marriage. Wife received a great deal of wealth through and after the marriage.
Husband did not receive the assets; the Trust for the Children did.
Because the record shows no evidence of a genuine dispute of
material facts at issue regarding Husband’s alleged failure to disclose assets, we
find that the Trial Court properly granted summary judgment to Defendants on
Counts I, VII, and VIII. This alleged failure to disclose is at the heart of Wife’s
appeal. Without evidence establishing this portion of the claim, the Trial Court
correctly concluded that Wife could not succeed on any of these three counts at
trial, as she has not made any showing of fraud that would otherwise support the
portions of each count on appeal. Accordingly, as to Case No. 2025-CA-0257, we
affirm the Trial Court’s grant of summary judgment in favor of Defendants.
4
Counsel for Defendants referred us to a recent case decided by this Court with the caption Lyons v. Lyons, in which we held that the fact that one party may have entered into a bad bargain does not necessarily require that we find the resulting contract to be unconscionable. Oral Argument at 11:45:26. Although counsel did not offer a direct citation to this case, he noted that the Presiding Judge in this case also presided over the case in question. On review, we could find only one recent case with the caption counsel referenced, but it had a different Presiding Judge (Easton) and did not include the language used at oral argument. Lyons v. Lyons, No. 2024-CA-0507-MR, 2025 WL 2087517, at *1 (Ky. App. Jul. 25, 2025). However, similar language can be found in a recent Opinion issued by this Court and authored by this Presiding Judge. Ivy v. Ontrac, Inc., No. 2024-CA-1275-MR, No. 2024-CA-1334-MR, No. 2025-CA0429-MR, 2026 WL 1109120 (Ky. App. Apr. 24, 2026). While this case is not final and cannot be cited as binding authority, counsel does aptly observe that we are hesitant to disturb the results of a negotiated agreement simply because the terms tend to favor one party. This is particularly true in the case sub judice, where both parties had the benefit of experienced counsel in entering into the agreement.
-29-B. Defendants’ Cross-Appeal of Summary Judgment on the
Counterclaim that Daughter Violated the Trust’s No-Contest Provision
Having affirmed the Trial Court’s issuance of summary judgment as
to Wife’s appeal and found no invalidation of the Agreement, we must next turn to
Defendants’ claim on cross-appeal that Daughter violated the Trust’s no-contest
provision. Because a ruling in favor of Defendants could disrupt all other rulings
reliant on Daughter’s status as a beneficiary of the Trust, we must first determine
whether the Trial Court erred in finding that Daughter had not violated the Trust’s
no-contest, or in terrorem, clause. See Commonwealth Bank & Tr. Co. v. Young,
361 S.W.3d 344, 352 (Ky. App. 2012) (internal quotation marks and citation
omitted) (“A no-contest clause provision in a will or trust is referred to as an in
terrorem clause because its purpose is to strike fear into the heart of a beneficiary
who might wish to consider contesting the provisions of the trust.”).
The Trust’s no-contest provision, Article 11(J), provides in relevant
part that “any beneficiary of a trust who contests any of the provisions of this
Agreement, or elects to take a statutory share of my estate, will be deemed to have
predeceased me for purposes of this Agreement.” R. at 128. After Plaintiffs filed
their complaint in 2019, Defendants filed a counterclaim asserting that Daughter
had triggered the Trust’s no-contest provision. R. at 343. Although the Trial Court
-30-did not allow portions of the original counterclaim seeking Estate tax
reimbursement from Daughter, it denied Plaintiffs’ motion to dismiss the nocontest portion of the claim in 2020. R. at 625 and 873. However, in March of
2021, the Trial Court granted summary judgment to Daughter on Defendants’
claim that she had violated the no-contest provisions of the Trust.
On appeal, Defendants argue that Daughter challenged the existence
and terms of the Trust in a variety of ways that should trigger the application of the
no-contest provision, despite her stated intent that she sought only to enforce the
terms of the Trust. At oral argument and in their Combined Briefs, Defendants
identified at least three possible violations, which included: sending a letter to
Alliance Coal directing that her third of the coal royalties be set aside for her and
not proceed to the Trust; joining Wife’s suit to invalidate portions of the
Agreement; and filing to remove Trustee from her “portion” of the Trust when he
had been named specifically as successor to Husband.5 According to Defendants,
Daughter’s only recourse to enforce the Trust should have been filing an action for
5
The appeals contain recurrent references to Daughter’s previously-advanced, legal theory that Husband’s death had created three separate, equal trusts for each of the beneficiaries that contained each of their shares of the Trust assets. However, the Fayette Circuit Court, and later the Trial Court, ultimately decided this issue in Defendants’ favor and issued summary judgment on any counts of the complaint reliant on that theory. As those rulings are not included in the appeals sub judice, this theory of separate trusts is noted only where relevant to discussion of the other claims before us on appeal.
-31-declaratory judgment on whether grounds existed to remove the successor Trustee
or to treat her portion of the assets as a separate Trust.
Ultimately, we do not find these arguments persuasive in establishing
any issue of material fact or other grounds for reversing the Trial Court’s grant of
summary judgment. Kentucky precedent generally holds that filing an action to
enforce the terms of a trust, including raising allegations of improprieties
committed by a trustee, does not violate an in terrorem clause. See, e.g.,
Commonwealth Bank & Tr. Co., 361 S.W.3d at 352-53; Ladd v. Ladd, 323 S.W.3d
772, 780 (Ky. App. 2010). Under Kentucky law, no-contest provisions are strictly
construed, and they are not extended beyond their express terms. Hurley v.
Blankenship, 267 S.W.2d 99, 100 (Ky. 1954).
While Defendants argue that the method in which Daughter sought to
enforce the Trust should invalidate her claim that she did not seek to set it aside,
they have offered no evidence to support this claim. Although Wife’s attempt to
undo portions of the Agreement that prevented her from exercising her dower
rights or from renouncing Husband’s will would necessarily have an effect on the
assets available to the Trust if successful, her complaint does not directly seek to
unmake the Trust or to challenge the allocation of assets between the Children.
Moreover, despite Defendants’ assertions that Daughter might have benefited from
these claims, both Wife and Daughter have consistently asserted that they made no
-32-agreement that Daughter would receive any amount awarded to Wife if their suit
should prevail. Defendants have not offered any evidence to the contrary other
than general supposition. Finally, we do not find that any alleged impropriety in
Daughter’s actions regarding the Alliance Coal royalties constitute an attempt to
invalidate the Trust, as Daughter requested control only over her share of the
royalties and appears to have complied with the Trial Court’s order to inform
Alliance Coal that the practice should be stopped following the Trial Court’s ruling
that no separate trusts existed.
Based on the foregoing, we find that Daughter’s suit sought
enforcement of the Trust’s terms, not to destroy or invalidate the Trust. Therefore,
we affirm the Trial Court’s conclusion that Daughter did not violate the no-contest
provision. However, as will be explained in detail immediately below, we cannot
affirm the full substance of the Trial Court’s Order granting summary judgment
due to unrelated language in its analysis of the case. R. at 1301-09.
C. Defendants’ Cross-Appeal of Partial Summary Judgment that
Trustee Breached the Terms of the Trust
After affirming the Trial Court’s rulings in the first two major issues
on appeal, we turn now to Defendants’ primary assignment of error in their crossappeal. Although they challenge a number of different rulings and decisions by the
Trial Court, the interconnected nature of the numerous claims and competing
-33-motions in the underlying cases means that a fundamental flaw with one ruling had
the potential to permeate throughout the remainder of the case. Despite the Trial
Court’s diligent and concerted efforts to navigate the breadth and complexity of the
issues before it, Defendants have identified a significant error that has
unfortunately tainted many subsequent decisions that we must now attempt to
unwind on appeal.
To identify the source of this error, we must turn to the Trial Court’s
Order granting Daughter’s renewed motion for distribution of Trust assets issued in
May of 2021. Although the Trial Court had previously denied a similar motion for
distribution as premature, it noted that circumstances had changed materially with
the March ruling that Daughter had not triggered the Trust’s no-contest provision.
R. at 1301. In issuing this Order, the Trial Court made a number of impermissible
findings of fact, including several that echo the Trial Court’s previous grant of
summary judgment in 2019 that recovering taxes from Daughter and her share of
the Trust would be a prohibited encumbrance and, therefore, violate the terms of
the Trust. R. at 625 and 1304. More critically, and in addition to its improper
attempt to decide the disputed facts, the Trial Court also made errors in its
conclusions of law by finding the following:
The language of the Trust provides for absolutely no
contingencies or exceptions to distribution of assets
provided none of the living children are in violation of
the no-contest provision. It is impossible for the Trustee
-34-to carry out these express terms of the trust when he
attempts to impose a “lien” on the trust assets or when he
demands the beneficiaries to reimburse the Estate for
federal estate taxes paid prior to any distribution.
Nevertheless, that is exactly what the Trustee has done
for almost three (3) years since the death of Frank V.
Ramsey, Jr.
Instead, the Trustee refused to distribute to Cynthia
Ramsey Cooper her equal share of the trust assets unless
she reimbursed the Estate of Frank V. Ramsey, Jr. for
federal estate taxes paid that would be attributable to her
share of the trust assets.
This Court agrees with Cynthia Ramsey Cooper that, by
denying distribution in the first place and seeking
reimbursement of federal estate taxes from the
Irrevocable Trust and it’s [sic] beneficiaries (especially
prior to any disbursement or payment of federal estate
taxes by the estate), the Trustee, Frank Ramsey III,
abdicated his responsibilities and duties as Trustee, in
favor of his role as Executor of the Estate of Frank V.
Ramsey, Jr., of which he is a beneficiary.
R. at 1306-08 (emphasis in the original).
In June of 2022, Wife and Daughter filed a motion for partial
summary judgment on Counts I and II of the complaint, which asserted that
requiring reimbursement from Daughter’s share of the Trust assets had
impermissibly encumbered the Trust and caused the Trustee to breach its terms.
At a hearing on this motion, however, Plaintiffs’ counsel seemed to alter the thrust
-35-of the pleadings by asserting that Trustee had breached his duty to the Trust by
failing to distribute the Trust’s assets more expeditiously.
The Trial Court issued a written Order in December of 2022 that
incorporates findings from both the 2019 and 2021 Orders discussed above. In so
doing, the Trial Court concluded that Husband had initially breached the terms of
the Trust when he wrote his will to direct recovery of Estate taxes from the
beneficiaries of the Trust. R. at 1972. The Trial Court further found that Trustee
had also breached the terms of the Trust by carrying out that provision of
Husband’s will and refusing to distribute Trust assets to Daughter until she had
reimbursed her portion of the taxes – in the face of Trustee’s repeated and adamant
denials that he had imposed such a condition. R. at 1973. Moreover, the Trial
Court then declined to determine damages, as there had been no evidence
submitted to establish any actual costs sustained by Daughter “between the time of
the breach and the actual distribution of assets.” R. at 1973.
Clearly understanding the wide-reaching impact of the Trial Court’s
decisions, Defendants repeatedly flagged errors and requested that the Trial Court
either reconsider the ruling or make the Order final and appealable to enable them
to seek interlocutory review before proceeding to trial. The Trial Court denied all
of these motions. Defendants raised the issue again when requesting clarification
of the Trial Court’s denial of Defendants’ motion for summary judgment on
-36-Counts IV and V due to asserted outstanding issues of material fact, which the
Court would not or could not articulate when requested. R. at 3791 and 4192. In
many of these filings, Defendants explicitly noted the confusion that these rulings
would ultimately create for the jury and the difficulty that they would cause in
identifying the remaining questions expected at trial. See R. at 3769, 3852, 3860,
and 4463. Further, as counsel for Defendants noted at oral argument, the Trial
Court made findings of fact based entirely on its own previous Orders from 2019
and 2021, which were themselves not based on any evidence within the record.
Defendants have raised many times the concern that the Trial Court
relied on a fundamental – and factually disputed – assumption since 2019 that
Trustee conditioned distribution of the Trust assets on Daughter’s reimbursement
of her apportioned share of Estate taxes. However, this “fact” remains heatedly in
dispute between the parties. In fact, Trustee provided sworn testimony explaining
his reasons for the delay that are in direct factual conflict with the Trial Court’s
assumptions:
Q. So prior to the commencement of this lawsuit, did
you withhold distribution of the trust assets to [Daughter]
until she agreed to reimburse the estate for the federal
taxes paid?
A. No, sir.
Q. So again, the only reasons that you withheld
distribution prior to this litigation being initiated was you
wanted the acceptance and approval of the 706 form?
-37-A. Yes, sir.
Trustee Depo., p. 198. Similarly, Trustee maintained in a sworn affidavit that:
Neither in my capacity as Trustee of the Frank V.
Ramsey, Jr., Irrevocable Trust, nor in any other capacity,
have I ever imposed as a condition upon the distribution
of Trust assets a requirement that a beneficiary reimburse
the Estate of Frank V. Ramsey, Jr., for estate tax
allocable to that beneficiary’s share of Trust assets from
the Trust assets themselves.
R. at 2079. Defendants also offered evidence of other factors for the delay in
distribution, such as the existence of a lien on the Estate’s assets by the IRS “until
the Estate’s tax liability was finally resolved.” Cross-Appellants’ Brief, p. 31 n.21.
Trustee may have been incorrect in his belief that no distribution of the Trust assets
could occur until the IRS accepted Form 706, especially because that form pertains
to Husband’s Estate, not the Trust itself. Regardless, the sincerity of that belief is a
question of credibility for the jury to answer and is evidence of yet another genuine
dispute of material fact in determining whether a breach occurred.
In contrast, Daughter does not cite specific evidence directly
contradicting Trustee’s affidavit or deposition, both of which occurred after the
Trial Court’s summary judgment but before its denial of the motion to alter,
amend, or vacate it. Importantly, as counsel for Defendants noted at oral
argument, Daughter never testified during the jury trial that Trustee conditioned
disbursement on her tax payment. Rather, she argues that the Trust terminated as a
-38-matter of law upon Husband’s death, and Trustee was required to distribute the
assets promptly regardless of any liens or tax issues. Daughter asserts that
Trustee’s violation in failing to distribute the Trust immediately upon Husband’s
death renders the factual dispute about his motivations for doing so irrelevant, even
as she maintains that it is obvious that Trustee delayed distribution because he
wanted something from her. Alternatively, counsel for Daughter suggested at oral
argument that the plain language of the second codicil to Husband’s will provided
proof of this fact based on its instruction that Husband’s personal representative
take whatever steps necessary to recoup reimbursement from the Trust
beneficiaries, up to and including delaying disbursement. However, this argument,
at most, emphasizes the need to submit the factual question to the jury. And while
the Trial Court did not grasp this point early, it should have seen the problem
clearly, given the frequency and strenuousness of Defendants’ objections. Instead,
the Trial Court found that “summary judgment regarding liability [was]
appropriate at [that] time” and that “there [were] no genuine issues of material fact
related to the pending motion.” R. at 1973. This statement is simply inaccurate.
Moreover, the assumption of only one factual motive for any delay in
distribution is not the only area of concern in the Trial Court’s rulings. In reading
the 2019 and 2021 Orders quoted above, which the Trial Court incorporated in its
Order granting summary judgment, the language clearly shows that the Trial Court
-39-was persuaded that the Trust had terminated upon Husband’s death. It then used
this belief to classify the three years that followed it as an obviously unreasonable
delay to distribute assets. But these continued errors served to compound the
problems that we have already identified.
First, we must note that the Trial Court incorrectly concluded that the
Trust terminated at the time of Husband’s death. In reaching this conclusion, the
Trial Court relied on a misinterpretation of Forman v. Brent, 309 Ky. 735, 218
S.W.2d 655, 657 (1948), modified on denial of rehearing (1949), to conclude that
“[u]nder Kentucky law, in the case of a trust that pays income to a beneficiary for
his life, and upon death distribution of the principal, the trust is deemed to
terminate on the death of the life beneficiary.” R. at 1308.
In Forman, a husband had left property and proceeds “in trust for the
benefit of my wife, in lieu of her dower[.]” Id. at 736 (internal quotation marks
omitted). Despite the trust’s requirement that the property be sold upon the
widow’s death, the children/trustees “continued to control and manage” the trust’s
property for almost two decades. Id. at 737. When all children eventually died, a
financial institution appointed as trustee sold the property, leaving a question as to
the identity of the parties entitled to the proceeds and the timing – those alive when
the widow died in 1929 or those alive when the property was actually sold in 1947.
Id. Kentucky’s then-highest Court resolved the question in favor of the persons so
-40-entitled if the property had been sold upon the widow’s death, as it should have
been, noting that the will provided that: “At the wife’s death the trust purpose had
been fully accomplished, and it was terminated, except for the duty of the trustees
to sell the property and distribute the proceeds. See Restatement of the Law,
‘Trusts,’ Volume 2, Section 334.” Id. at 738.
Remarkably, we could not find that Forman has been cited even one
single time by a Kentucky Appellate Court despite having been issued over 75
years ago. As the Trial Court and parties relied upon it, we must perform an
independent analysis of the breadth of its holding. In reviewing the facts of that
case, the Forman Court held that the trust terminated at the widow’s death because
on that date “the trust purpose [to provide income to the widow for her lifetime]
had been fully accomplished . . . .” Id. at 738. It cited the RESTATEMENT (FIRST)
OF TRUSTS § 334 (1935), which provided that: “[i]f by the terms of the trust[,] the
trust is to continue only until the expiration of a certain period or until the
happening of a certain event, the trust will be terminated upon the expiration of the
period or the happening of the event.”
Thus, it was not the death of the life estate beneficiary, standing alone,
which caused the trust to terminate. Rather, the trust terminated because the death
of the beneficiary caused the trust’s purpose to have been fully accomplished.
Forman neither broadly nor invariably held that every Kentucky trust involving a
-41-life estate beneficiary terminates automatically as a matter of law when that
beneficiary dies. Instead, the Court’s much more modest holding was that there
was no reason for that trust to remain ongoing after the widow died, and the
language of the trust required its assets to be sold at her death.
To determine when a Trust’s purpose has been fully accomplished,
Kentucky law requires that we look to its maker’s intent. As we have held, “the
settlor’s intent is controlling and is the polar star of all efforts to interpret the trust.
Additionally, if the language used by the settlor is a reasonably clear expression of
intent, then the inquiry need go no further.” Murphy v. Shehan, 633 S.W.3d 350,
353 (Ky. App. 2021). If a trust lacks a statement providing its express purpose, as
is the case with the Trust at hand, there is an “ancient, limited exception to the
parol evidence rule whereby a court can examine extrinsic evidence to ascertain a
trust’s purpose.” Garland v. Miller, 611 S.W.3d 275, 280 n.2 (Ky. App. 2020).
The Trust’s language sub judice supports finding its creation for two
purposes: (1) income to Husband during his lifetime; and (2) assets for Husband’s
and Wife’s Children in equal one-third shares upon his death. The first purpose
obviously was fully accomplished at his death. However, that purpose would
appear to be secondary in nature here. As Husband was already the settlor, the life
estate beneficiary, and the owner of the assets, Husband did not need to transfer
assets to a Trust to enjoy income therefrom during his lifetime. Moreover, a letter
-42-from Wife’s counsel to Husband’s counsel in August of 2013 essentially states that
the Trust’s purpose is for the three Children to share equally the designated assets
upon Husband’s death:
Of primary importance to [Wife] (and hopefully
[Husband]) is that the bank and the family farm in
Webster County be left, unencumbered, for the children
at [Husband]’s death . . . . [W]e believe the best way to
accomplish this is through the present transfer of the
property into an irrevocable trust.
R. at 2256. Similarly, Section 4 of the Agreement provides in relevant part that
“[i]t is the parties’ express intention to transfer certain assets owned and controlled
by Husband to an irrevocable trust for the benefit of husband, for life, with
remainder . . . for the equal benefit of the parties’ three children . . . .” R. at 104.
These two purposes are not facially inconsistent with the Trial Court’s
conclusion that the Trust required distribution following Husband’s death.
However, the Trial Court’s further conclusion that the Trust’s purposes had been
accomplished as of the date that Husband died ignores an important provision of
the Trust itself. As discussed above, the Trust’s no-contest provision provided one
issue that had to be resolved prior to distribution of the Trust, as the language
provided that any beneficiary who contested the terms of the Trust would be
considered to have pre-deceased Husband. Additionally, the Trust contained a
survivorship clause, which provided that a beneficiary who died within 90 days of
Husband’s death would be deemed to have predeceased him, and the beneficiary’s
-43-children would inherit his or her share. Accordingly, distribution to beneficiaries
could not possibly have occurred until at least 91 days after Husband died because
only then could the identities of the beneficiaries have been determined with any
certainty. Thus, only after the 91st day after Husband’s death could the purpose of
the Trust become “fully accomplished.” Forman, 218 S.W.2d at 738. The Trial
Court’s contrary conclusion cannot be affirmed.
The Trial Court’s erroneous ruling makes the evidence of a factual
dispute in whether the Trustee’s delay of disbursement constituted a breach of the
Trust even more difficult to ignore. Trust Section 9.1(O) provides that “after a
trust Terminates . . . Trustee will . . . promptly distribute the remaining trust assets,
and may not impose any condition (including, without limitation, filing a
settlement or accounting or requiring a beneficiary to execute a release or
indemnification) before doing so.” R. at 124-25. Pursuant to the terms of the
Trust, the Trustee could not even identify the proper beneficiaries for 90 days after
Husband’s death, which would have fallen in October of 2018. Plaintiffs filed
their complaint in March of 2019, less than six months after the earliest date on
which the Trust could have possibly terminated. After initiation of the suit and the
allowance of a counterclaim that Daughter had breached the no-contest provision
of the Trust, the Trial Court also denied distribution of Trust assets, finding that the
-44-beneficiaries could not be determined until that question of law had been settled.
Thus, the Trial Court itself also delayed the distribution here.
Given Trustee’s consistent argument during the earliest period of
litigation that filing the suit constituted a breach by Daughter of the Trust’s nocontest provision, Defendants have offered more than a scintilla of affirmative
evidence to present to a jury that it was Plaintiffs’ initiation of litigation that
prevented prompt distribution of the Trust assets. Although the Trial Court
concluded that Trustee had impermissibly abandoned his Trustee role in favor of
his role as Executor, the only substantial, supporting evidence that Daughter has
cited is the language in Husband’s will directing delayed distribution to compel
reimbursement. She has not offered any affirmative evidence that Trustee
followed or even intended to carry out this guidance or that he ever made any
direct representation that distribution of the Trust assets would be dependent on tax
reimbursement to the Estate. Construing the facts in favor of Trustee as the nonprevailing party, as Courts are required under the law to do, a jury could have
found in Defendants’ favor on a number of factual disputes, including the
reasonableness of any delay, the motive for that delay, and whether that delay
-45-could be considered part of a winding-up period given all of the facts surrounding
the ongoing administration of the Trust.6
Because all of these concerns raise material issues of fact regarding
the Trustee’s alleged breach, we find that the Trial Court clearly erred in granting
partial summary judgment to Plaintiffs on the issue of liability in Counts I and II of
the complaint. We must reverse and remand for the jury to make these factual
determinations, as should have been done by the Trial Court.
D. Defendants’ Cross-Appeal that Flawed Jury Instructions
Tainted the Final Verdict for Plaintiffs on Counts II, IV, and V of the
Complaint
As a corollary, and as Defendants have repeatedly contended, the
Trial Court’s above-mentioned errors in granting summary judgment caused or at
least resulted in wide-ranging additional errors before the jury trial on the
remaining issues in Counts II, IV, and V of the complaint. Defendants again
brought these issues to the Trial Court’s attention in moving for clarification of the
Trial Court’s Order denying summary judgment on Counts VI and V, which
alleged breach of fiduciary duties by Trustee and a negligence claim against
6
See also Beeler v. Fidelity & Columbia Trust Co., 293 Ky. 361, 169 S.W.2d 16, 19 (1943) (‘“Although the time for the termination of the trust has arrived in accordance with the terms of the trust, the trustee does not thereby necessarily cease to be trustee, but he continues to be trustee until the trust is finally wound up. The period for winding up the trust is the period after the time for termination of the trust has arrived and before the trust is terminated by the distribution of the trust property.’”).
-46-Trustee in administering the Trust. However, the Trial Court could not
understandably reconcile its conclusion that there remained factual issues for the
jury to decide on whether Trustee had breached his duty to Daughter with its own
finding that Trustee had “abdicated” his role in favor of his role as Executor. R. at
1308, 3791, and 4192. Because the Trial Court failed to correct its error in the
partial grant of summary judgment on liability, we must now untangle the resulting
effects of that error on the trial that followed.
In relevant part, Defendants find fault with the following instructions
given by the Trial Court, which can be directly traced to the Orders from 2019,
2021, and 2022, discussed above:
INSTRUCTION NO. 5
Upon termination of the Irrevocable Trust, the assets
were required to be distributed promptly with no
conditions. The Frank V. Ramsey, Jr. Irrevocable Trust
terminated the day that Frank V. Ramsey, Jr. died, July
08, 2018.
***
INSTRUCTION NO. 7
When a trustee breaches a duty owed to the beneficiary
they [sic] have also committed a breach of the
Irrevocable Trust. The withholding for distribution for
an unreasonable period of time until the assets were
ultimately distributed constituted a breach of the
Irrevocable Trust. Tripp breached the Irrevocable Trust
by refusing to convey Cynthia’s portion of the trust assets
-47-to her without first being reimbursed for federal estate
taxes.
INSTRUCTION NO. 8
By denying distribution of trust assets without first
obtaining reimbursement of federal estate taxes from
Cynthia, Tripp[,] as trustee, abdicated his responsibilities
and duties as trustee in favor of his role as executor of the
estate of Frank Ramsey Jr., of which he is a beneficiary.
R. at 4632-3635.7
In disputing the above jury instructions, Defendants raise substantially
the same arguments that they have raised since the grant of partial summary
judgment in December 2022, noting that the Trial Court usurped the jury’s role as
finder of disputed facts and also impermissibly instructed the jury to issue specific
findings of fact. The record shows that Defendants raised concerns through both
proposed jury instructions and a motion in limine, seeking to prevent any mention
of Trustee’s liability to the jury and returning to the jury questions of
reasonableness and factual cause(s) for any delay in distribution. Daughter fails
directly and substantively to address these errors in jury instructions. Rather, she
maintains that the Trial Court’s grant of summary judgment had already resolved
any factual issues and that the Trial Court properly instructed the jury on those
7
The preceding page is numbered 4634; the succeeding page is numbered 4646.
-48-issues in the same way that it later instructed them on the finding that Daughter had
not violated the no-contest provision.
Given the previously-discussed error in issuing the summary
judgment that decided disputed facts in Plaintiffs’ favor, we must determine the
effect of the Trial Court’s incorporation of that error into the jury instructions at
trial. In recent years, our Supreme Court has returned repeatedly to the question of
erroneous jury instructions, offering further clarification on the application of
Kentucky’s “bare-bones approach,” which “means those that simply frame ‘what
the jury must believe from the evidence in order to return a verdict in favor of the
party who bears the burden of proof.’” Norton Healthcare, Inc. v. Disselkamp, 600
S.W.3d 696, 723 (Ky. 2020) (quoting Meyers v. Chapman Printing Co., 840
S.W.2d 814, 824 (Ky. 1992)). Reviewing collected cases on this issue, the Court
noted that:
trial courts are called upon to engage in a balancing effort
to ensure that jury instructions in Kentucky provide only
the bare minimum necessary to ensure that the jury
understands the ultimate issue of fact to be decided in
any case, but still provide enough law and background
knowledge so that the jury comes to a decision that is
supported by law.
Id. at 723 (citations omitted).
In reviewing the underlying record, it is clear that Defendants
highlighted, regularly and often, the conflicts that would occur in trying to instruct
-49-the jury on the issues that had already been decided on summary judgment while
asking them to make other highly-related factual findings. Their objections –
strenuous and lengthy – were preserved. They tendered proposed instructions that
the Trial Court declined to give.
Moreover, given the emphasis of bare-bones jury instructions in
Kentucky case law, the Trial Court should have seen the readily-apparent red flag
of its highly detailed and fact-specific instructions. Its significant unwillingness to
adhere to this bare-bones principle in crafting the instructions, coupled with its
inability to delineate facts to be decided by a jury should have alerted the Trial
Court itself that a significant error had already occurred in the proceedings. If a
Trial Court finds itself in the position of repeatedly instructing the jury on critical
findings of pure fact, it has veered from its proverbial lane.
In order to review a jury instruction properly on appeal, we must
consider whether the challenged instruction actually misstated the law to the jury.
If the appellate court finds that the challenged jury
instruction did misstate the law, a presumption of
prejudice arises[,] and the challenging party is entitled to
a new trial unless the responding party is able to show
affirmatively that the error did not affect the verdict. In
contrast, if the appellate court finds that the jury
instructions did not misstate the law, no presumption of
prejudice arises and the complaining party is only
entitled to a new trial if she is able affirmatively to show
prejudice, meaning that the error affected the verdict.
-50-Id. at 724. The standard of review of a properly-preserved challenge to the
substantive contents of a jury instruction is de novo. Id. at 710.
Here, we find that the Trial Court misstated the law to the jury in the
challenged instructions by telling them erroneously that the Trust terminated when
Husband died. The Trial Court ignored entirely the lawful survivorship period in
determining the Trust’s termination. Under these circumstances, Daughter
assumes the burden of affirmatively showing that the error did not affect the
verdict. Daughter has made no such showing, and indeed, we find that she cannot.
Through this error, the Trial Court allowed the jury to impose damages for a period
during which Trustee was not required to distribute assets. While the verdict was
modest ($103,000 plus one-third of the administrative fees) when compared to the
award Daughter requested ($2 million), it presumably includes alleged damages
before the Trust legally terminated.
This error compounds the impact of the error in instructions seven and
eight, particularly by stating that Trustee withheld distribution for an unreasonable
period of time, thereby abdicating his duty as a trustee in favor of his role as
executor of the Estate. The Trial Court should never have made this finding but
should have allowed the jury to make the factual determination. As discussed
immediately above, the record sets forth multiple questions of fact for a jury to
resolve in determining whether the Trustee is liable, and, if so, what damages
-51-actually resulted. However, the Trial Court’s instructions treat these disputed
questions as settled, directing the jury to find without deciding for itself that the
Trustee had required Daughter to pay taxes prior to any asset distribution. The
Trial Court required the jury to accept its own factual conclusion and left no
avenue by which the jury could find otherwise. In so doing, and by instructing the
jury that Trustee and Defendants acted wrongfully, there can be no doubt that the
error impacted the verdict.
It is always error for a Judge to instruct a jury to discount
contradictory evidence and accept as fact a matter that the parties dispute. Here,
the amount of evidence that the Trial Court instructed the jury to ignore through
this conclusory pair of instructions is significant. We cannot find it harmless that
the jury was asked to decide whether Trustee “engaged in conduct which breached
any of his fiduciary duties, including the duties listed in Jury Instruction No. 4”
after being instructed that “Tripp breached the Irrevocable Trust by refusing to
convey Cynthia’s portion of the trust assets to her without first being reimbursed
for federal estate taxes.” R. at 4634 and 4638. Without this error, the jury might
reasonably have found, based upon the conflicting evidence and subjective
determinations of credibility, that Trustee did not withhold assets to force Daughter
to pay. And even if the jurors found that Trustee violated the Trust by not
promptly distributing the assets after the survivorship, they might have awarded
-52-fewer, or even nominal, damages – especially since some of the delay was
unquestionably caused by the Trial Court’s own pausing of the distribution.
It is a long-settled position in Kentucky law that if it is unclear from
the record that a verdict was “not probably influenced by an erroneous charge,”
then the appellate Courts must reverse the judgment. Louisville Railway Co. v.
Lenehan, 253 Ky. 489, 69 S.W.2d 1017 (1934). In a case such as this one, where
the Trial Court both usurped the jury’s role as fact-finder and failed to identify
correctly the date that the Trust at issue terminated, we must follow wellestablished precedent and reverse for a new trial with proper – and bare bones –
jury instructions.
E. Defendants’ Cross-Appeal of the Trial Court’s Rulings on the
Reasonableness of Trustee’s Fees
Because we find the case must be remanded for a new trial on Counts
II, IV, and V of the complaint, we must next address Defendants’ claim that the
Trial Court improperly denied its motion for summary judgment on Trustee’s fees
and its motion in limine to prevent submission to the jury of evidence of any fees
charged by the Trustee in administering the Trust. Although the denial of
summary judgment will be reviewed de novo as previously explained, we review
rulings excluding evidence pursuant to the deferential abuse of discretion standard.
See, e.g., Welsh v. Galen of Virginia, Inc., 128 S.W.3d 41, 54 (Ky. App. 2001).
-53-Section 9.1(J) of the Trust allowed the Trustee to receive fees and
gave him the power “[t]o charge administration expenses to income or principal.
Any expense incurred by Trustee in safeguarding or in delivering trust assets, or in
selling trust assets and then delivering the proceeds thereof, will be treated as an
administration expense.” R. at 123. Section 11(K) also generally provides that
“[f]or services hereunder, Trustee will receive compensation in accordance with a
regular schedule of fees in effect at the time such services are rendered; or if none,
Trustee will be entitled to reasonable compensation.” R. at 128-29. The parties
have not pointed to such a schedule. However, there is an important limitation
placed upon Trustee’s right to receive compensation in Section 9.1(O), which
states in relevant part:
Trustee may continue to exercise any powers and any
discretion hereunder for a reasonable period after the
termination of any trust. Provided, however, that after a
trust terminates or Trustee is removed, Trustee will
receive no compensation, will promptly distribute the
remaining trust assets, and may not impose any condition
(including, without limitation, filing a settlement or
accounting or requiring a beneficiary to execute a release
or indemnification) before doing so. At Trustee’s own
expense Trustee may file a settlement or accounting so
long as such does not materially delay or impede the
transfer of the remaining trust assets.
R. at 124-25 (emphasis added).
This issue is, at its core, another dispute revolving around the timing
of the Trust’s termination. Trustee claims that the Trust terminated upon asset
-54-distribution, while Daughter argues that the Trust terminated upon Husband’s
death. Under Daughter’s interpretation and the Trial Court’s erroneous adoption of
it, which we have already rejected, Trustee was never entitled to receive any
Trustee fees because he did not become Trustee until Husband’s death. Like many
of the other issues surrounding the reasonableness of Trustee’s conduct and any
delay in the distribution of the Trust, this dispute is one that is also properly for the
jury to decide.
The record shows that Trustee received compensation for that role as
follows: $52,539.78 on December 28, 2018 (R. at 4693); $109,618.80 on
November 13, 2019 (R. at 4694); $110,211.85 on December 21, 2020 (R. at 4756);
and $39,494.26 on May 17, 2021 (R. at 4757). None of those disbursements
(totaling $311,864.69) occurred during the 90-day survivorship period. Because
the December 2018 disbursement is not itemized, we cannot know what portion of
the fees, if any, represent actions taken by Trustee during the survivorship.
Consequently, the appropriateness of Trustee’s fee awards is a question that is
intertwined with the other factual questions in this case and not one that can be
determined on summary judgment.
Accordingly, the Trial Court appropriately denied Defendants’
motion. Similarly, the Trial Court did not abuse its discretion in denying
Defendants’ motion in limine, as evidence of the fees is a necessary component in
-55-determining damages in the event that the jury had found Trustee liable (as
opposed to the Trial Court) and that he had improperly awarded fees to himself.
See, e.g., KRS 386B.10-010. Accordingly, we affirm the Trial Court’s rulings on
this limited issue and conclude that this evidence should not be barred on retrial.
F. Daughter’s Appeal of Summary Judgment to Defendants on
Amended Counterclaim to Recover Estate Tax
Turning from the errors affecting the trial and most of the Defendants’
assignment of errors on cross-appeal, we now must consider Daughter’s appeal of
the Trial Court’s grant of summary judgment to Defendants that she owed
reimbursement of taxes to Defendants as the beneficiaries of Husband’s Estate. To
do so, we must first review the procedural posture of the underlying cases on this
question, as it has been the subject of multiple different rulings before the final
grant of summary judgment.
Daughter first raised the question of reimbursement in Plaintiffs’
original complaint, alleging that Husband’s treatment of Daughter’s share of taxes
breached the Agreement:
48. Frank V. Ramsey, Jr. breached the terms of the
Separation Agreement by not providing for the equal
benefit of his three children under the irrevocable trust.
Specifically, Frank V. Ramsey, Jr., included in his Last
Will and Testament and 2nd Codicil provisions
attempting to apportion federal estate taxes to the Trust’s
legacy assets and bequeathing other liquid assets to his
sons to enable them to pay the estate tax on their share of
-56-the Trust’s assets, but not bequeathing any assets to
Cynthia Ramsey with which to pay the estate tax on her
share of the Trust’s assets.
49. By imposing an encumbrance on the Trust’s assets
without bequeathing assets to his daughter with which to
discharge it, Frank V. Ramsey, Jr., discriminated against
Cynthia Ramsey and thereby breached the provision of
the Separation Agreement which states that the assets of
the Trust are to pass at his death for the equal benefit of
the parties’ three children.
R. at 83.
As discussed tangentially in the previous sections of this Opinion, the
Trial Court’s rulings regarding the Trustee’s supposed breach of the Trust were
directly connected to the Trial Court’s agreement with Daughter’s position that the
reimbursement of the tax acted as an encumbrance of the Trust and would
constitute a breach of the Agreement. R. at 629. Accordingly, the Trial Court
initially denied actions filed by Trustee, as Executor of Husband’s Estate, to seek a
judgment that the Estate could seek reimbursement from Daughter for taxes.
However, once the Trial Court granted disbursement of the Trust
assets in May 2021, Defendants filed a motion for permission to file a
counterclaim against Daughter individually seeking to require her to pay her share
-57-of the taxes under 26 United States Code (“U.S.C.”) §§ 22058 and 2207B.9 The
Trial Court held a lengthy hearing on the motion and then orally and summarily
granted it. Without further explanation, the Trial Court indicated that it believed
that the distribution of the Trust’s assets had materially changed the situation. The
8
26 U.S.C. § 2205 provides:
If the tax or any part thereof is paid by, or collected out of, that
part of the estate passing to or in the possession of any person
other than the executor in his capacity as such, such person shall be
entitled to reimbursement out of any part of the estate still
undistributed or by a just and equitable contribution by the persons
whose interest in the estate of the decedent would have been
reduced if the tax had been paid before the distribution of the estate
or whose interest is subject to equal or prior liability for the
payment of taxes, debts, or other charges against the estate, it being
the purpose and intent of this chapter that so far as is practicable
and unless otherwise directed by the will of the decedent the tax
shall be paid out of the estate before its distribution.
9
26 U.S.C. § 2207B (“2207B”) provides:
(a) Estate tax. –
(1) In general.—If any part of the gross estate on which tax has
been paid consists of the value of property included in the gross
estate by reason of section 2036 (relating to transfers with retained
life estate), the decedent’s estate shall be entitled to recover from
the person receiving the property the amount which bears the same
ratio to the total tax under this chapter which has been paid as –
(A) the value of such property, bears to
(B) the taxable estate.
(2) Decedent may otherwise direct.--Paragraph (1) shall not apply
with respect to any property to the extent that the decedent in his
will (or a revocable trust) specifically indicates an intent to waive
any right of recovery under this subchapter with respect to such
property.
-58-Trial Court’s written order merely stated that it had provided its reasoning at the
hearing. However, recognizing the disparity between its current ruling and its
previous rulings, the Order stated that “[a]ll inconsistent rulings in the previous
Orders of the Court are set aside.” R. at 1397.
The counterclaim, filed by both sons (Trustee in both his capacity as
executor of Husband’s Estate and individually), stated that the Trust’s assets were
worth almost $22,000,000, and the federal tax owed thereon was almost
$6,200,000. According to the counterclaim, “[t]he net Estate Tax due has been
paid[,]” and both sons “have each reimbursed the Estate for the net Estate Tax paid
that is attributable to their one-third share (each) of the Irrevocable Trust from
amounts that otherwise would have been distributed to them.” R. at 1399.
However, it claimed that Daughter “has refused to reimburse the Estate for the net
Estate Tax paid by the Estate that is attributable to her one-third share of the
Irrevocable Trust . . . .” Id. The counterclaim asserted that the Estate or both sons
individually are entitled to reimbursement from Daughter of her share of the Estate
taxes owed on the Trust’s assets under 2207B, but it did not list a specific sum. R.
at 1400-02. Paragraph 15 of the counterclaim stated that “[f]or purposes of clarity,
the Executor states that he does not seek any relief from the Court with regard to
any claim of reimbursement against the assets within the Irrevocable Trust itself.”
Id.
-59-In November of 2021, the Trial Court granted Defendants’ motion for
partial summary judgment on their counterclaim. The Order does not provide any
rationale, again noting that the rationale had been stated on the record during the
90-minute hearing. Therein the Trial Court had stated that the Trust’s assets had
been distributed unencumbered. Later, the Trial Court had stressed that 2207B
was directly on point, and Husband had not indicated that he wished to waive his
Estate’s right to recover.
On appeal, Daughter contests the Trial Court’s grant of summary
judgment to Defendants on their counterclaim seeking reimbursement from her
pursuant to 26 U.S.C. §§ 2205 and 2207B. The same standards previously
discussed govern our review of that summary judgment decision. Crowder, 724
S.W.3d at 778; Kearney, 638 S.W.3d at 397-98. There does not appear to be a
meaningful dispute about the facts here; instead, the issues are questions of law
regarding the proper interpretation and application of the Agreement, the Trust,
Husband’s codicil, and federal taxation statutes. Specifically, the primary dispute
between the parties is: (1) the meaning of the Agreement’s and Trust’s silence as
to which party bears the burden of paying the Estate taxes, which both parties
agree were anticipated at the time that both documents were drafted and signed;
and (2) whether Husband had the freedom to direct reimbursement from the Trust
beneficiaries without such being considered an impermissible encumbrance.
-60-As a preliminary matter, we observe that neither the Trust nor the
Agreement explicitly provided for Estate tax payments. Daughter’s primary
argument on appeal has been that Section 9.2 of the Trust provides that the Trustee
has no power to “encumber” any assets of the Trust without written consent of the
Children and that this provision was always intended to prevent any of the
beneficiaries of the Trust from having to bear the burden of any Estate tax owed.
However, Defendants maintain that the Trial Court correctly interpreted the silence
of the Agreement and Trust as offering no bar to Husband’s ability to arrange his
Estate planning as he wished outside the clearly stated terms of those two
documents. In so doing, the Trial Court further accepted Defendants’ position that
2207B allowed reimbursement from Daughter as a Trust beneficiary.
As previously discussed, “[t]he construction and interpretation of
contracts, including questions of ambiguity, are matters of law subject to de novo
review.” AnyConnect US, L.L.C., 636 S.W.3d at 561-62. “Where a contract is
ambiguous or silent on a vital matter, a court may consider parol and extrinsic
evidence involving the circumstances surrounding execution of the contract, the
subject matter of the contract, the objects to be accomplished, and the conduct of
the parties.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385
(Ky. App. 2002). Moreover, “[i]t is well settled law that a court may not add
language to the written law to achieve a desired result.” Fox v. Grayson, 317
-61-S.W.3d 1, 8 (Ky. 2010). See also, e.g., Lee v. Kentucky Dep’t of Corrections, 610
S.W.3d 254, 262 (Ky. 2020) (“Furthermore, when the statute is unambiguous,
courts are not free to insert words or add a provision even if it may be just or
desirable to do so.”).
Both parties refer us to these principles of contract interpretation and
assert that accepting the other party’s position would require us to add language to
either the Trust or the Agreement to achieve their respective desired results.
Similarly, throughout the pendency of the proceedings below and on appeal, both
parties have pointed to communications between Husband and Wife prior to
signing the Agreement to support their positions on the tax issue. These
communications included letters showing that legal counsel believed that tax
would eventually be due on the Trust assets, that Wife had negotiated through
counsel that Husband would pay her share of yearly taxes, and that Wife knew that
Husband’s Estate would include assets other than those included in the Trust. See
Response Brief for Appellees/Cross-Appellants in Case Nos. 2025-CA-0267 and
2025-CA-0440 at Appendix 4, 5, and 7.
Neither party points to any evidence in the record that suggests that
either Husband or Wife misled the other as to any provisions for Estate tax or that
either should have suspected that they had not reached the same conclusion about
whether the Agreement and Trust settled the issue of which person or entity would
-62-pay the expected taxes. Wife’s deposition testimony, which is cited by both parties
for numerous issues to support their interpretations of the original intent of the
Agreement, makes clear that she assumed the Courts would “fairly” administer the
law to bar recovery of taxes based on the provision that the Trust assets could not
be encumbered. See, Jean H. Ramsey Depo., at 96. However, there is no evidence
that she confirmed this understanding with her counsel or that this understanding
was conveyed to Husband or his counsel prior to signing. In fact, the available
evidence suggests that the parties did address the issue of identifying who would
bear other tax burdens in the settlement process. See Response Brief for
Appellees/Cross-Appellants at Appendix 4.
In this light, we do not find persuasive Daughter’s argument that
Kentucky law regarding the power of spouses to contract regarding taxes would
control in this situation. While Husband and Wife could have included provisions
in the Agreement waiving the operation of Kentucky and federal law governing the
party responsible for paying Estate taxes, they did not do so. In the alternative,
Daughter argues that ordering reimbursement should still be barred, because the
very act of the Trustee seeking reimbursement from the Trust assets is still a
breach of the Trust and Agreement, as the Trial Court initially held. However, this
assertion is also unpersuasive given that the Trial Court ultimately issued summary
-63-judgment on a different counterclaim altogether, which addressed the right of
recovery from Daughter’s assets individually after disbursement of the Trust.
Again, the complex, interwoven nature of the numerous rulings in
these inter-related cases illustrates Defendants’ prescient argument against
distribution of Trust assets during the pendency of litigation. Defendants made the
Trial Court and Plaintiffs very aware of their intent to appeal the Trial Court’s
adverse rulings once they were made final and that disbursement could materially
affect the posture of other outstanding issues. However, Daughter repeatedly
pursued disbursement, and she eventually won the relief she sought. Given the
number of outstanding questions at issue in these cases and the lack of finality on
multiple contested decisions, Daughter had significant advance notice that later
rulings could result in adverse consequences once disbursement occurred. And
despite Wife’s seemingly accurate and harmless statement about Courts
administering the law, laws and their applications are not always clear, which is
one reason that the Judicial branch is entrusted with interpreting (versus enforcing)
the law. While Daughter urges that we consider the assets still protected from
encumbrance either by her status as a beneficiary of the Trust or by the notion that
the Trust remained in existence somehow due to the ongoing litigation, thereby
continuing to prevent its previous assets from encumbrance, she cites no
compelling legal basis for these arguments.
-64-Similarly, Daughter does not point to any convincing authority that
would bar application of 2207B, which expressly allows Defendants to recover her
apportioned share of Estate tax through its own application and the provisions of
Husband’s will. Quoted above, the statute specifically authorizes estates to recover
the tax amounts from beneficiaries following life estates. U.S.C. § 2207B(a)(1)(AB). As the Trial Court noted, this statute appears directly on point given the
provision that the proceeds would provide for Husband for the remainder of his life
before distributing the assets to the beneficiaries on his death.
Regardless of whether taxes can theoretically constitute
encumbrances, “[u]nder Kentucky law,[10] federal estate taxes and Kentucky
inheritance taxes are required to be shared proportionately by all of the
beneficiaries in the absence of a specific direction in the will.” Houghland v.
Lampton, 33 S.W.3d 536, 538 (Ky. App. 2000) (internal quotation marks and
citations omitted). However, Congress has promulgated statutes, such as 2207B,
providing estate tax rules for “specific assets.” 2 EST. TAX & PERS. FIN. PLAN. §
18:9. “Because of their specificity, these statutes override state law – a fact often
overlooked by many drafters.” Id. “The essential inquiry when deciding whether a
statute is preempted by a federal statute or regulation is whether the state and
10
“[T]he general rule . . . is state law [] determines who bears the ultimate burden of federal estate taxes on probate property.” 2 EDWARD F. KOREN, EST. TAX & PERS. FIN. PLAN. § 18:9 Apportionment of estate taxes (Apr. 2025 Update).
-65-federal law can coexist and be applied without conflict.” Housing Auth. of
Covington v. Turner, 295 S.W.3d 123, 127 (Ky. App. 2009).
Though she disputes the application of the federal statute, Daughter
has not cited a specific Kentucky law directly overriding, or at least contradicting,
2207B. Daughter has also not shown a direct conflict between 2207B and the
longstanding, similar, general rule under Kentucky law that “the share of each
legatee which contributes or adds to the amount of the federal estate taxes and state
inheritance taxes shall bear its proportionate part of those taxes, unless the will
‘indicates’ a contrary intent.” University of Louisville v. Liberty Nat. Bank & Tr.
Co., 499 S.W.2d 288, 288-89 (Ky. 1973). Accord, e.g., Hale v. Moore, 289
S.W.3d 567, 581 (Ky. App. 2008).
Alternatively, Daughter insinuates that Husband waived the right for
his Estate to seek reimbursement of taxes under 2207B. But that statute provides
explicit instructions as to the sole manner by which a decedent may waive its
application. Specifically, 2207B(a)(2) provides unambiguous, plain language that
the right to recover Estate tax obligations from the person receiving property “shall
not apply with respect to any property to the extent that the decedent in his will (or
a revocable trust) specifically indicates an intent to waive any right of recovery
under this subchapter with respect to such property.” Husband did not avail
himself of this easily accomplishable waiver by Trust or will.
-66-The Agreement and Trust were created after 2207 was enacted.
Therefore, that statute’s impact and applicability reasonably should have been
known by Husband and Wife (each of whom was specifically advised to obtain tax
advice in the Agreement). As Kentucky precedent has held for over a century, “the
parties are presumed to know the law and contract with reference thereto, and that
law becomes as much a part of the contract as if written in it.” City of Henderson
v. Henderson Traction Co., 200 Ky. 183, 254 S.W. 332, 333 (1923). Thus, it was
incumbent upon Husband to take specific, affirmative action if he wished to
exempt his Estate from 2207B and upon Wife to insist that he do so if she wished
to make the exemption a term of the Agreement. Either party could have added a
clause in the Agreement or Trust to avoid application of the default taxation rule,
but they did not.
Ultimately, the Trust does not explicitly discuss federal estate taxes,
and it certainly does not state with specificity that Husband has waived the
provisions of 2207B. Instead, the Trust specifies its intent that its assets be divided
equally among the Children but contains no explicit discussion of payment of
Estate taxes. It does not exempt the application of 2207B sub silentio.
Furthermore, it is not unlawful that Husband provided mechanisms in his will for
his sons to repay the Estate taxes but not for his Daughter. Parents often treat their
children differently, and the law neither prohibits disparity nor mandates equality.
-67-After all, gifts are not obligations. Free individuals are at liberty to distribute their
assets as they choose. Kentucky has long espoused this principle:
the law extends to the citizen a valuable privilege of
disposing of his property, at death as he sees fit, and the
courts jealously guard this right. By nature a will
expresses the discriminating wishes of the testator.
Inequality in the distribution of an estate by will is not in
itself evidence of mental incapacity.
Gerard v. Gerard, 350 S.W.2d 719, 720 (Ky. 1961) (citations omitted). While
Husband and Wife could have included additional provisions in the Agreement to
add further requirements to Husband’s Estate planning in addition to the provisions
already contained in the Trust and Agreement, they did not. We cannot do so now
in their stead. Absent such a provision, it would be unreasonable to construe a
trust or agreement simply requiring assets be divided equally as including a silent
(yet specific) waiver barring an otherwise applicable federal statute.
The only conclusion supported by the record is that Husband did not
validly waive his Estate’s right to seek reimbursement under 2207B. Thus, the
default rule under 2207B and Kentucky law applies – the beneficiary pays his or
her proportionate share of Estate taxes. Therefore, we affirm the Trial Court’s
decision to grant summary judgment to Defendants on this counterclaim, and we
reject all of Daughter’s contrary arguments in Case No. 2025-CA-2057.
-68-G. Defendants’ Cross-Appeal of Final Judgment’s Failure to
Include Damages for Daughter’s Apportioned Share of Estate Tax
Having determined that the Trial Court appropriately granted
summary judgment to Defendants on this counterclaim, we must next turn to
Defendants’ request that we direct the Trial Court to award a sum certain, as well
as fees and interest, after the Trial Court failed to do so in either the grant of
summary judgment or the judgment post final verdict. Daughter argues that the
omission stems from Defendants’ seeking only declaratory relief and failing to
include a claim for monetary damages.
However, we note plainly that the very heading of the counterclaims
seek “reimbursement” from Daughter, citing 2207B; and paragraph 14 specifically
asserts that Trustee, as executor of Husband’s Estate, is “entitled to reimbursement
from [Daughter] of a monetary amount that bears the same ratio to the total Estate
tax which has been paid as the value of the property received by [Daughter] from
the Irrevocable Trust bears to the taxable Estate.” R. at 1400. Further, the demand
for relief at the close of the counterclaim requests, in addition to interest, costs, and
attorneys’ fees, a sum for the Estate taxes: “that are received by [Daughter] by
way of her one-third share of the Irrevocable Trust.” It also requests “[a]ll other
relief to which they appear entitled.” R. at 1402. Defendants’ motion for summary
judgment used virtually identical language. R. at 1508. Based on the clear
-69-language of the counterclaims and motion for summary judgment, we cannot
accept Daughter’s assertion that Defendants sought purely declaratory relief or that
they were required to amend their counterclaim.
We also reject Daughter’s argument that Defendants’ proposed
judgment did not comply with the Trial Court’s scheduling order, which required
“dispositive motions” to be filed 30 days before the final pretrial conference. A
proposed final judgment is not a dispositive motion, and summary judgment had
already been granted here. Moreover, the scheduling order stated that the Trial
Court would not consider “pleadings” filed after that deadline had expired. Under
CR 7.01, a proposed judgment is not a pleading, which is defined as including only
“a complaint, answer, reply to a counterclaim, answer to a cross-claim, a thirdparty complaint, and a third-party answer.” Anderson v. Cabinet for Health and
Family Services, 643 S.W.3d 109, 114 (Ky. App. 2022).
In reviewing the record, it appears that the counterclaim was not
addressed at trial. Defendants’ pretrial memorandum asserts that: “[t]he amount
of that tax is not disputed. There are no issues of fact to be tried to the jury as to
this claim.” R. at 4466. Although the amount of tax is readily ascertainable from
the available record, we note that Defendants waited over three years after the
summary judgment order and after trial to seek a judgment against Daughter on
their 2207B counterclaim, as well as prejudgment interest and attorneys’ fees.
-70-These claims were properly matters for the Trial Court to resolve, not matters for
the jury. Inn-Group Mgmt. Servs., Inc. v. Greer, 71 S.W.3d 125, 130 (Ky. App.
2002) (attorneys’ fees are an issue of law for the Trial Court). See also, e.g., Mo–
Jack Distributor, L.L.C. v. Tamarak Snacks, L.L.C., 476 S.W.3d 900, 906 (Ky.
App. 2015) (“the issue of whether attorney fees are recoverable is one exclusively
within the discretion of the trial court and not properly submitted to the jury as an
element of compensatory damages”). Likewise, as to prejudgment interest, it
follows as a matter of course on liquidated damages, and it must be determined by
the Trial Court on unliquidated damages. Nucor Corp. v. General Elec. Co., 812
S.W.2d 136, 141-45 (Ky. 1991).
The Trial Court here made no determinations about reasonable fees or
interest. To do so, it would need to rely upon the parties to provide appropriate
documentation, such as affidavits or time logs. No party has directed us to a
location in the record where such evidence was given or contested. “As an
appellate court, we review judgments; we do not make them.” Klein v. Flanery,
439 S.W.3d 107, 122 (Ky. 2014). We thus cannot make the initial determination
of attorneys’ fees and interest. Instead, we remand the matter to the Trial Court to
issue a judgment for a sum certain in Defendants’ favor on their 2207B
counterclaim, which is to include a determination of prejudgment interest and fees,
-71-if any. The Trial Court may, in its discretion, elect to allow discovery and/or an
evidentiary hearing to resolve any disputes about the amount.
IV. CONCLUSION
Given the complexity of the consolidated claims, we will address our
holding in each appeal individually for clarity. For the reasons stated above:
In Case No. 2025-CA-0257, we affirm the Trial Court’s grant of
summary judgment to Defendants on Counts I, VII, and VIII of the complaint;
In Case No. 2025-CA-0267, we affirm the Trial Court’s grant of
summary judgment to Defendants on their counterclaim seeking reimbursement for
the Estate of Frank V. Ramsey, Jr. and Defendants individually for Daughter’s
share of Estate taxes on the distributed Trust assets;
In Case No. 2025-CA-0440, we affirm the Trial Court’s grant of
summary judgment to Plaintiff that she did not violate the Trust’s no-contest
provision;
In Case No. 2025-CA-0440, we reverse the Trial Court’s partial grant
of summary judgment to Plaintiffs that Trustee breached the irrevocable Trust by
refusing to distribute Trust assets until Daughter reimbursed the Estate for her
apportioned share of the Estate taxes;
-72-In Case No. 2025-CA-0440, we vacate the Trial Court’s final
judgment issued on February 20, 2025, and remand for a new trial with proper jury
instructions, as outlined above;
In Case No. 2025-CA-0440, we affirm the Trial Court’s denial of
summary judgment to Defendants on the appropriateness of Trustee fees;
In Case No. 2025-CA-0440, we affirm the Trial Court’s denial of
Defendants’ motion in limine preventing submission of evidence to the jury on the
Trustee fees charged; and
In Case No. 2025-CA-0440, we remand to the Trial Court to issue a
judgment for a sum certain in Defendants’ favor on their 2207B counterclaim and
to conduct any further proceedings necessary consistent with this Opinion.
ALL CONCUR.
-73-BRIEFS FOR APPELLANT JEAN H. BRIEFS FOR APPELLEES/CROSSRAMSEY: APPELLANTS FRANK V.
RAMSEY, III AND RELATED
Daniel E. Hitchcock PARTIES:
Lexington, Kentucky
Thomas W. Miller
William G. Deatherage, Jr. Elizabeth C. Woodford
Hopkinsville, Kentucky Lexington, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR
APPELLANT JEAN H. RAMSEY: APPELLEES/CROSS-APPELLANTS
FRANK V. RAMSEY, III AND
Daniel E. Hitchcock RELATED PARTIES:
Lexington, Kentucky
Thomas W. Miller
William G. Deatherage, Jr. Lexington, Kentucky
Hopkinsville, Kentucky
BRIEFS FOR APPELLANT/CROSSAPPELLEE CYNTHIA RAMSEY
COOPER:
Daniel E. Hitchcock
Lexington, Kentucky
William G. Deatherage, Jr.
Hopkinsville, Kentucky
ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE
CYNTHIA RAMSEY COOPER:
Daniel E. Hitchcock
Lexington, Kentucky
William G. Deatherage, Jr.
Hopkinsville, Kentucky
-74-