In re Estate of Eppes

85 Va. Cir. 205, 2012 WL 9321393, 2012 Va. Cir. LEXIS 172
CourtNorfolk County Circuit Court
DecidedAugust 13, 2012
DocketCase No. (Civil) CL09-3618
StatusPublished

This text of 85 Va. Cir. 205 (In re Estate of Eppes) is published on Counsel Stack Legal Research, covering Norfolk County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Eppes, 85 Va. Cir. 205, 2012 WL 9321393, 2012 Va. Cir. LEXIS 172 (Va. Super. Ct. 2012).

Opinion

By Judge Louis A. Sherman

I. Procedural History

This Court referred the current matter to the Commissioner of Accounts. The Commissioner was asked to take evidence and make factual and legal findings to determine whether Administratrix, c.t.a., Karen Fortier (“Fortier”) is justified in reducing the share of the Estate otherwise distributable to Mary Martin (“Mary”). Fortier and Bryan and Gregory Eppes contend that, but for Mary’s interference, the Estate would have sold the Property for $500,000, $61,400 more than its ultimate sale price. Fortier and Biyan and Gregory Eppes believe that Mary’s actions also caused the Estate to incur expenses that it would not have had to incur were it not for Mary’s dilatory actions.

After holding a hearing on September 27, 2011, and receiving several rounds of submissions on the subject matter, the Commissioner of Accounts ultimately determined in his report that Mary “substantially interfered with the efficient administration of the Estate to such a degree that Fortier will be justified in reducing the share of the Estate otherwise distributable to M[ary].” {Id. at 11.) The Report goes on to allocate the expenses in question between those to be paid by the Estate and those to be paid by Mary. {Id. at 17-25.)

[206]*206In response to the Commissioner of Accounts’ Report, Maty filed a series of objections and exceptions. This Court held a hearing on those objections and exceptions on July 10,2012. After fully and carefully considering all of the evidence presented to the Commissioner of Accounts, the arguments of counsel made in written submissions to the Commissioner, and the written submissions and oral arguments presented to the Court, for the following reasons, this Court upholds the Commissioner’s Report in significant part and does not sustain it as to one lesser matter.

II. Background

Cleo Eppes (“Cleo”) died on March 18, 2007 and left two surviving children, James Eppes (“James”) and Mary Martin (“Mary”), and two grandchildren, Bryan and Gregory Eppes (collectively “the Brothers”), the surviving children of Cleo’s predeceased son, Roy. Under the laws of intestacy, James, Mary, and the Brothers would each receive one-third of Cleo’s estate, with Bryan and Gregory sharing equally their late father’s one-third share.

By way of further background, in 1996, James took his mother, Cleo, to a lawyer and had a will drafted; however, this will was lost at the time of Cleo’s death. When Cleo died, Martha Eppes, the Brothers’ mother and Cleo’s daughter-in-law, attempted to contact Mary about the Estate. Martha was curious about the 1996 will, and ultimately discovered that, in 2007, a mere eleven days before her passing, Cleo had executed a new will leaving virtually her entire estate to Mary and $100 to James with nothing for the Brothers. Evidence suggests that, at the time the 2007 will was executed, Cleo was terminally ill, was subject to a do-not-resuscitate order, was on morphine for pain management, and had simply marked the will with an “X” as her signature. (Comm’r’s Report, 3.)

Believing that Cleo’s 2007 will was created as a result of Mary’s undue influence, Martha Eppes appeared in the Norfolk Circuit Court on May 23, 2008, and qualified as the administratrix of Cleo’s Estate. Martha designated the Estate as a “small estate” with less than $15,000 of total assets. No one challenged Martha’s qualification within the statutorily proscribed six month period. (Id.) On May 12,2008, Mary appeared in the Norfolk Circuit Court to probate the 2007 will and qualified as executrix under that will. Again, no one challenged the order admitting the 2007 will to probate or the order appointing Mary as executrix of Cleo’s Estate within the statutorily proscribed six month period. {Id.)

The Brothers subsequently filed a partition suit in the Virginia Beach Circuit Court that sought to have the Estate’s lone asset, a house located at 220 85th Street in Virginia Beach, Virginia (the “Property”), partitioned among the family members who would have been Cleo’s intestate heirs. The Brothers proceeded on the theory that, if the 2007 will was invalid, the [207]*207Estate descended to the heirs through the laws of intestacy. Both Mary and James were made parties to the partition suit, but only Mary responded. James was found to be in default. (Id. at 4.) In September 2008, during a mediation session, the Brothers, Mary and James reached a tentative settlement agreement. However, when it came time for the parties to sign this tentative agreement, Mary refused. In November 2008, Mary and the Brothers revised the September 2008 agreement by hand and signed it. (James was not a party to the amended November 2008 agreement.) In the November 2008 agreement (the “Agreement”), the Brothers and Mary agreed that Mary would step down as executor, a neutral third party would be appointed, and that Maty and the Brothers would split the proceeds from the sale of the Virginia Beach Property 50/50. The Agreement did not change the 2007 will’s gift of $100 to James. The Agreement also provided that the new fiduciary would manage and sell the Property and also provided that, “to the extent that the terms of the [Agreement] are in conflict or in question, the executor shall resolve it in his or her sole discretion.” (Id.) Once the parties signed the Agreement, the Brothers nonsuited the Virginia Beach partition suit.

Under the terms of the Agreement, Karen Fortier (“Fortier”) was appointed as “Administratrix, c.t.a.” by the Norfolk Circuit Court on July 1, 2009. (Comm’r’s Rep., 5.) Fortier was also granted power to sell the Property. (Id.) Sections 5(e), (f), and (g) are the three key provisions of the Agreement. They deal with who is to collect rents from the Property and how those rents are to be used. They are quoted below in full:

e. During the Pending Period, Mary will become the acting Landlord for Unit A of the Property, taking on all responsibilities as a fiduciary to B[ryan] and Gfregory] and J[ames] in that capacity. Mary will be responsible for the reasonable upkeep, repair, and management of Unit A. Mary will collect any and all rents for Unit A for her sole use and be responsible for all income taxes incurred after September 15, 2008, and liabilities arising from any use of Unit A.
f. During the Pending Period, the Firm1 will, for its regular management fee, manage and rent out Unit B of the Property, using its best business judgment. The Parties agree to expeditiously sign any management agreement necessary to facilitate this provision. The Firm will be responsible for all management duties, including decisions regarding rental amounts, repairs, and other associated costs. If there are any questions that need to be decided by the Parties, the Parties [208]*208agree that a decision reached unanimously by the attorneys for Mary and B[ryan] & G[regoiy] will bind the Parties. The Firm will collect rents from Unit B (the Rents).
g. The Rents will be distributed in the following manner of succession:
1. The Firm will take its fee from the Rents.
2. Any and all outstanding taxes assessed against the Property will be paid.
3. Any current taxes or other debts of the Property are paid.
4.

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Bluebook (online)
85 Va. Cir. 205, 2012 WL 9321393, 2012 Va. Cir. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-eppes-vaccnorfolk-2012.