ESTATE OF KATHERINE M. LYONS, DECEASED: ANTHONY LOBRED
OF JUDGMENT: 01/27/2016
COUNTY CHANCERY COURT TRIAL JUDGE: HON. VICKI R. BARNES
ATTORNEY FOR APPELLANT: DAVID M. SESSUMS
ATTORNEY FOR APPELLEE: HENRY DEAN ANDREWS, JR.
WALLER, C.J., KITCHENS AND COLEMAN, JJ.
The instant interlocutory appeal arises from a will contest
between the testator's brother, Larry Lyons, and her
nephew, Anthony Lobred. Larry filed a motion to strike the
deposition testimony of Dr. Lara Clement, a treating
physician of the testator, due to Lobred's counsel's
alleged ex parte communication with Dr. Clement
prior to her deposition. The trial court ordered that any
testimony of Dr. Clement that was not discernable from the
testator's medical records would be inadmissible at
trial. Lobred sought permission to file an interlocutory
appeal and the Court granted Lobred's petition. We hold
that the communication between Dr. Clement and Lobred's
attorney was acceptable ex parte communication;
accordingly, we reverse and remand.
On September 23, 2005, the testator, Katherine M. Lyons,
executed a document purporting to be her last will and
testament ("2005 will"). The 2005 will designated
her nephew, Lobred, as executor and provided that all of
Katherine's real and personal property would be devised
to Lobred. The 2005 will also provided that, in the event
Lobred predeceased Katherine, the sole beneficiary would be
her nephew, Kenneth Lyons.
On July 17, 2012, Katherine executed a document purporting to
be her last will and testament ("2012 will"). The
2012 will designated Katherine's brother, Larry Lyons, as
executor. The 2012 will provided that all of Katherine's
real and personal property would be devised to Larry's
son, Kenneth Lyons, while reserving a life estate for her
residence for her brother, John Lyons. Upon John Lyons's
death, the residence would revert to Kenneth Lyons.
On March 29, 2014, Katherine passed away at the age of
eighty-three. Katherine was not married and had no living
children at the time of her death. Katherine's death
certificate identified her immediate cause of death as
cardiopulmonary arrest due to or as a consequence of
Alzheimer's Disease. Larry disputed that Katherine died
from complications associated with Alzheimer's Disease
and further disputed that Katherine had suffered from
Alzheimer's from 2012 until her death.
On April 22, 2014, Lobred filed a petition to probate the
2005 will as muniment of title to real property in Warren
County. In the petition, Lobred claimed that Katherine had
conveyed to him certain real property in Warren County and
had reserved a life estate for herself. Lobred claimed that
because Katherine's personal estate did not exceed the
sum of $10, 000, no reason existed to have an administration
of the estate or to appoint an executor. The trial court
entered an order probating the 2005 will as muniment of title
to real property in Warren County. On July 18, 2014, Larry
filed a petition to probate the 2012 will in common form. The
trial court entered an order admitting the 2012 will to
probate and appointing Larry as executor.
The trial court consolidated the two separate cases. On
November 4, 2014, Lobred filed a petition contesting the
validity of the 2012 will. Lobred argued that Katherine had
lacked testamentary capacity at the time she had executed the
2012 will. Lobred also argued that the will was invalid
because it was the product of undue influence from an
individual or individuals having a fiduciary relationship
On November 6, 2014, Larry filed a petition contesting the
validity of the 2005 will as muniment of title to real
property. Larry argued that the 2012 will revoked all wills
and codicils previously made. Larry requested that the trial
court declare the 2005 will void as a muniment of title.
Larry filed a response to Lobred's petition contesting
the 2012 will. Larry disputed Lobred's claim that
Katherine had lacked testamentary capacity at the time she
had executed the 2012 will and further disputed that the 2012
will was a product of undue influence.
During discovery, Lobred served Dr. Clement with a subpoena
duces tecum requesting Katherine's medical
records. Katherine's medical records were provided to
both Larry and Lobred. Dr. Clement, a family medicine
physician, saw Katherine as a patient on fourteen occasions
from 2001 to 2006. Dr. Clement saw Katherine as a patient on
five occasions from January 31, 2011, to May 17, 2012. Dr.
Clement last saw Katherine as a patient on May 17, 2012. On
November 6, 2015, Lobred filed a notice of deposition
scheduling Dr. Clement's deposition to be held at David
M. Sessums's law office on December 10, 2015.
On December 10, 2015, Larry's counsel, Dean Andrews Jr.,
arrived at Sessums's office and waited in the deposition
room. Lobred's counsel, Sessums, entered the room with
Dr. Clement. Andrews asked Sessums if he had been discussing
Katherine's medical records with Dr. Clement; Sessums
Dr. Clement's deposition is not in the record, but the
substance of Dr. Clement's deposition testimony is not in
dispute. According to Lobred's petition for permission to
appeal, Dr. Clement testified that Katherine had been
competent to execute a valid will in 2005, but had been
incompetent to execute a power of attorney in favor of Larry
on May 8, 2012, and also incompetent to execute a valid will
on July 17, 2012. Larry claimed that Dr. Clement testified
that she had spoken with Sessums in preparation for her
deposition. Larry also claimed that Dr. Clement testified
that no one had authorized her to speak with anyone about
Katherine's medical records and that she was familiar
with privacy laws.
On January 8, 2015, Larry filed a motion to strike the
testimony of Dr. Clement. Larry argued that Dr. Clement's
testimony should be excluded due to unauthorized ex
parte communication between Dr. Clement and Lobred's
counsel. Larry sought to strike all of Dr. Clement's
testimony and did not limit the motion to specific testimony.
Larry also claimed he had discovered that Sessums's law
firm had represented Dr. Clement in an unrelated medical
malpractice case. Larry argued that the ...