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Whisenant v. McKamie

Court of Appeals of Arkansas, Division IV

February 7, 2018



          Johnson & Vines, PLLC, by: J. Andrew Vines, for appellant.

          Mann & Kemp, PLLC, by: Angela Mann and Harrison Kemp, for appellee.

          ROBERT J. GLADWIN, Judge.

         The Hempstead County Circuit Court granted summary judgment to appellee Robert M. McKamie, personal representative of the estate of Robert Samuel McKamie, deceased (the Estate), in an interpleader action filed by Southern Farm Bureau Life Insurance Company (SFB) due to competing claims for life insurance proceeds. Kindell Whisenant, the decedent's ex-spouse and the designated policy beneficiary, argues on appeal that (1) the decedent's last will and testament was not sufficient to change the beneficiary of the life insurance policy; (2) public policy should prevent the use of extrinsic evidence to identify the life insurance policy; and (3) genuine issues of material fact remain that prevent summary judgment. We affirm.

         I. Facts

         SFB filed its interpleader complaint against the Estate and Kindell Whisenant alleging that it had issued a life insurance policy to Robert Samuel McKamie (Sam) on January 26, 2012. Sam designated his wife, Kindell, as primary beneficiary of that policy. Sam and Kindell divorced on September 4, 2014. Thereafter, Sam executed a will on July 30, 2015, revoking any designation of beneficiaries made by him in favor of his former spouse and directing the proceeds to his father, Robert M. McKamie. The will states:

3.3. Gift(s) of Life Insurance Proceeds. I hereby give and bequeath all of my right, title and interest whatsoever to any proceeds derived from any insurance policy on my life to my father, Robert M. McKamie, regardless of my having earlier designated Kindell McKamie (aka Kindell Whisenant). Specifically, it is my intent because of my divorce from Kindell McKamie (aka Kindell Whisenant) that she be disinherited under any such life insurance policy which was purchased by my brother, John Odom. In other words, my intent as to the disposition of such life insurance proceeds is within this Last Will and Testament, and as such, it shall take precedence over any other beneficiary designations made by me in favor of my former spouse, Kindell McKamie (aka Kindell Whisenant).

         Sam died on April 24, 2016. SFB alleged that both the Estate and Kindell had made claims for the life insurance proceeds. Therefore, SFB interpleaded the $250, 000 life insurance proceeds under Arkansas Rule of Civil Procedure 22 (2016) and asked the circuit court to determine the party to whom the proceeds should be paid.

         The Estate answered and filed a motion for summary judgment, alleging several undisputed material facts. Those facts included that Sam and Kindell were married on June 4, 2010; Sam's brother, John Odom, took Sam to the SFB office of Josh Quinn to purchase a life insurance policy on December 7, 2011; the policy was issued on January 26, 2012, showing Sam as the owner and the insured and Kindell as the primary beneficiary; John Odom gave Sam $8000 on January 17, 2012, in part to pay the initial premium of $1015 before the January 26, 2012 due date; John Odom gave Sam another $8000 on February 3, 2012, in part to pay the next monthly premium before the February 26, 2012 due date; Sam and Kindell divorced on September 4, 2014, after four years of marriage and no children were born of the marriage; Sam executed a will on July 30, 2015, disinheriting Kindell under any life insurance policy as set forth above; Sam died on April 24, 2016; Sam's father opened his son's estate on July 25, 2016, and was appointed personal representative; Kindell made demand on the SFB policy within three weeks of Sam's death; the Estate also made demand for payment under the policy; other than the policy at issue, Sam had no life insurance policies in effect at the time of his death or at the time he executed his will on July 30, 2015; John Odom had never purchased any other life insurance policies for or with Sam; and Kindell was not named as primary beneficiary on any other life insurance policy.

         Attached to the summary-judgment motion was the SFB life insurance policy at issue; an affidavit of John Odom stating that he took Sam to buy the insurance policy, Sam did not have any other insurance policies, he was not involved in any other insurance policies on Sam, and he had given Sam two checks for $8000 each to pay for the initial premium and for the first few monthly premiums on the policy; two checks from John Odom to Sam; Sam and Kindell's divorce decree; Sam's last will and testament; the order appointing the personal representative of the Estate; and an affidavit of Robert M. McKamie stating that he had been appointed the personal representative of the Estate, Sam only ever had one life insurance policy, and John Odom had taken Sam to buy the policy.

         Kindell filed a cross-motion for summary judgment with her attached affidavit in which she denied that John Odom gave Sam money to buy a life insurance policy, claiming that the money was for the purchase of a horse, and denied that John Odom took Sam to purchase the policy, asserting that she and John drove together and each bought a life insurance policy. Kindell alleged that there were material facts in dispute, including whether John Odom purchased the policy. She argued that it was undisputed that Sam failed to effectuate a change of beneficiary under the policy in the manner required by the policy before he died. She also alleged that Sam's will does not mention the policy, but instead references a policy of insurance purchased by John Odom, and she argued that John Odom did not purchase the policy. Thus, she claimed that the proceeds of the policy were payable to her as a matter of law.

         In support of its answer to Kindell's cross-motion for summary judgment, the Estate attached the affidavit of Josh Quinn, the SFB agent who sold Sam the life insurance policy at issue. He stated that John Odom introduced him to Sam and brought Sam to his office a few times. He also stated that after Sam and Kindell's divorce, Sam came to his office and asked him to help change the primary-beneficiary designation from Kindell to his father, Robert McKamie. He stated that Sam filled out the change-of-beneficiary form. Quinn failed to send the form to SFB's headquarters for processing. Quinn stated that he advised Sam that he could mention in his will that he intended to change the beneficiary on the policy. He stated, "I know for absolute fact that John Odom paid or caused to be paid many of the premium payments on the policy. I know for absolute fact that Sam only had one policy in effect as of the date he executed his last will[.]"

         In Kindell's supplement to her cross-motion for summary judgment, she argues that the Estate never produced the change-of-beneficiary form referenced in Josh Quinn's affidavit. Attached to the supplemental pleading was an affidavit of SFB's custodian of records, Donna Kettleman, stating that a search of the company's policy file did not indicate the existence of any change-of-beneficiary form. Kindell argued that, ...

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