Johnston v. McAvoy

Shenandoah County Circuit Court

Johnston v. McAvoy

87 Va. Cir. 130, 2013 Va. Cir. LEXIS 90

CourtShenandoah County Circuit Court

DecidedSeptember 26, 2013

DocketCase No. (Civil) CL13-189

StatusPublished

This text of 87 Va. Cir. 130 (Johnston v. McAvoy) is published on Counsel Stack Legal Research, covering Shenandoah County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnston v. McAvoy, 87 Va. Cir. 130, 2013 Va. Cir. LEXIS 90 (Va. Super. Ct. 2013).

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Opinion

By Judge Dennis L. Hupp

Dolly McAvoy began working for Raymond Wine in 2002. Five years later, he gave her his general power of attorney. Three years thereafter, he made a will making her his sole beneficiary, and, in another two years, he deeded her his real estate. Whenever an employee of relatively short tenure with no familial connection ends up with the entire estate of an elderly person, red flags of giant proportions are raised. This is the situation presented here. Mr. Wine was 94 years of age at the time of his death and suffered from heart problems; however, he died within hours of Ms. McAvoy’s last visit with him, and there was evidence of physical injury that may or may not have resulted from a fall.

I can see a possible motive for foul play on her part in that hastening the death of Mr. Wine would remove his life estate in the real estate and advance the date upon which she would accede to the rest of his estate. In addition, his death would also bring to a halt legal proceedings then pending wherein her power of attorney could be terminated and her conduct questioned.

The person who seeks Mr. Wine’s disinterment is his sister, his closest kin, who is willing to pay the cost thereof and must do so under the terms of the applicable statute. Ms. McAvoy’s stated reason for opposing the disinterment strains credulity. It is hard for me to imagine that Mr. Wine and Ms. McAvoy ever discussed his desire not to be disinterred. Indeed, the whole tone of Ms. McAvoy’s testimony made her a good witness for the [131]*131petitioner. This may be, as the defendant suggests, a fishing expedition, but it appears at this time that the defendant may have stocked the pond.

Anna Johnston, sister of the decedent and possible heir and distributee at law in the case of his intestacy, is a private person with an interest in the matter at hand, and she has shown sufficient cause for the exhumation of the body of Raymond Wine.

I grant the petition and order the exhumation pursuant to Virginia Code § 32.1-286(B).

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By Judge Dennis L. Hupp

Dolly McAvoy began working for Raymond Wine in 2002. Five years later, he gave her his general power of attorney. Three years thereafter, he made a will making her his sole beneficiary, and, in another two years, he deeded her his real estate. Whenever an employee of relatively short tenure with no familial connection ends up with the entire estate of an elderly person, red flags of giant proportions are raised. This is the situation presented here. Mr. Wine was 94 years of age at the time of his death and suffered from heart problems; however, he died within hours of Ms. McAvoy’s last visit with him, and there was evidence of physical injury that may or may not have resulted from a fall.

I can see a possible motive for foul play on her part in that hastening the death of Mr. Wine would remove his life estate in the real estate and advance the date upon which she would accede to the rest of his estate. In addition, his death would also bring to a halt legal proceedings then pending wherein her power of attorney could be terminated and her conduct questioned.

The person who seeks Mr. Wine’s disinterment is his sister, his closest kin, who is willing to pay the cost thereof and must do so under the terms of the applicable statute. Ms. McAvoy’s stated reason for opposing the disinterment strains credulity. It is hard for me to imagine that Mr. Wine and Ms. McAvoy ever discussed his desire not to be disinterred. Indeed, the whole tone of Ms. McAvoy’s testimony made her a good witness for the [131]*131petitioner. This may be, as the defendant suggests, a fishing expedition, but it appears at this time that the defendant may have stocked the pond.

Anna Johnston, sister of the decedent and possible heir and distributee at law in the case of his intestacy, is a private person with an interest in the matter at hand, and she has shown sufficient cause for the exhumation of the body of Raymond Wine.

I grant the petition and order the exhumation pursuant to Virginia Code § 32.1-286(B).

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87 Va. Cir. 130, 2013 Va. Cir. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-mcavoy-vaccshenandoah-2013.