Turner v. Bowman

64 Va. Cir. 354, 2004 Va. Cir. LEXIS 163
CourtRockingham County Circuit Court
DecidedApril 8, 2004
DocketCase No. CH01-17937; Case No. CH01-18500
StatusPublished

This text of 64 Va. Cir. 354 (Turner v. Bowman) is published on Counsel Stack Legal Research, covering Rockingham County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. Bowman, 64 Va. Cir. 354, 2004 Va. Cir. LEXIS 163 (Va. Super. Ct. 2004).

Opinion

BY JUDGE JOHN J. MCGRATH, JR.

[355]*355I. Factual Background

These inter-related cases all involve the ultimate issue of the final distribution of the property of Miller D. Turner. The plethora of lawsuits have arisen because of what appears to be a tragic error in the drafting of a will and the subsequent incapacity of the will’s beneficiary. The facts that are recited in this opinion are taken from the depositions taken during these and related proceedings, the pleadings, the proffers of evidence made at the numerous hearings and arguments held in these cases, and the Report of the Special Conservator and the supporting documentation thereto. The facts are not recited or relied upon for the purpose of ruling on the demurrer to the Amended Bill of Complaint filed in Docket No. CH00-17937 (for the purpose of ruling on the demurrer, the Court considers as proven only the well pleaded facts and necessary inferences therefrom), but only to explain the Court’s ruling in Part III of this Opinion and Order.

Miller Turner and Janet Turner had been married for about fifty years when Mr. Turner went to his attorney to have a will drafted. Mr. and Mrs. Turner never had children, but each had accumulated a substantial amount of property in their own names. In or around 1995, Mrs. Turner began to experience fairly serious health problems and began a long series of hospital and nursing home admissions which ultimately resulted in her being admitted permanently to Life Care Center in New Market, Virginia, in the mid-1990’s. She has remained a patient at Life Care Center to this day. Her condition is currently non compos mentis, and medical reports indicate that her condition will remain the same or deteriorate until she dies.

In 1997, Mr. Turner went to his attorney and requested that an estate plan be drafted whereby his assets upon his death would go into a trust which would pay out interest and principal for the benefit of his wife and the balance remaining after her death would be paid over to four of his nieces and nephews, including Kay W. Bowman, the wife of Larry Bowman, both of whom were named as trustees under the Miller D. Turner Revocable Trust dated October 8, 1997 (hereinafter “Miller Turner Trust”). The attorney drafted the will and the trust agreement, but in error totally failed in the will to pay the decedent’s estate to the trust for the benefit of his wife, but, instead, the will left all of his property outright to his wife. The will and the trust agreement were executed by Miller Turner on October 8, 1997. This drafting error was never detected by the attorney or Mr. Miller before his death.

Mr. Miller died on September 11, 1999, and the error in the will was promptly discovered. The error in Miller Turner’s will meant that Janet [356]*356Turner would die owning all of her own property and all of her husband’s property, all of which would go to her relatives by intestacy. (Mrs. Turner apparently executed no will before becoming incompetent.) This would result in the four relatives of Mr. Miller, who were the remaindermen of the trust of Miller Turner for the benefit of Janet Turner, receiving nothing.

However, Janet Turner had executed a Power of Attorney on January 27, 1995, which named her husband as her attomey-in-fact and her husband’s nephew, Larry Bowman, as successor attomey-in-fact. The same Larry Bowman was named by Mr. Miller as the executor of his will and as a trastee of the trust created for the benefit of his wife, Janet Turner. After Mr. Bowman had discussed these matters with Miller Turner’s former attorney, he decided to act under the 1995 Power of Attorney. Therefore, on behalf of his ward, Janet Turner, he disclaimed all of the inheritance she was to receive from her late husband. That inheritance then went to Mr. Bowman’s wife and three other relatives of Mr. Turner, who were the remaindermen of the unfunded trust (and who were also the beneficiaries under Mr. Miller’s will in the event his wife predeceased him).

The four individuals who received this money after the disclaimer, then paid all of the money over to the Miller Turner Trust, thus leaving the Trust funded precisely as it would have been if Miller Turner’s will had been drafted as intended. Because Defendant Larry Bowman is Janet Turner’s attomey-in-fact and he is the Trustee of the Miller Turner Trust, he continues to pay all of Mrs. Turner’s nursing home and medical bills.

This litigation commenced when Alan B. Dove, who is a cousin of Mrs. Turner, filed two actions on June 12, 2000. In one action he sues as “Janet R. Turner, incapacitated, by Alvin B. Dove, her next friend” requesting that the Court restrain Lany Bowman from transferring any property belonging to Janet Turner, rescind the Attomey-in-Fact’s disclaimer of the inheritance from her husband, and remove Larry Bowman as Janet Turner’s attorney-in-fact (Docket CHOI-17937). In a second suit filed the same day, Alvin B. Dove, petitioned the Court to be' appointed the Guardian, Conservator, and Health Care Agent for his cousin, Janet Turner (Docket CHOI-17938).

In the Guardianship action (Docket CH00-17938), the Court appointed Daniel J. Neher, Esquire, a discreet and competent attomey-at-law, to act as a guardian ad litem for Janet Turner. On June 14, 2000, the guardian ad litem filed a formal acceptance of his appointment.

After a hearing on September 5, 2000, the Court set an ore terms hearing on . the- various factual issues concerning the accusations and cross-accusations relating to the handling of Janet Turner’s affairs by Larry Bowman pursuant to the 1995 Power of Attorney. On January 8, 2001, [357]*357Daniel J. Neher, the guardian ad litem for Janet Turner, filed a separate action for the appointment of a special conservator to take control of Mrs. Turner’s property, to determine if it was being managed prudently and in the best interests of Mis. Turner, whether the Power of Attorney was a validly executed document, and whether a permanent guardian and/or conservator was needed to assure for the proper care of Mrs. Turner and the management of her property (Docket CHO1-18202).

On February 22, 2001, this Court entered an order in Chancery No. CHOI-18202 appointing John Sills, Esquire, a prominent member of the Staunton-Augusta County bar, to serve as a special conservator with the following mandate:

It is accordingly ordered that:
1. John W. Sills, III, is appointed as Conservator of Janet R. Turner’s estate, initially for the following purposes only:
a. To determine whether the power of attorney from Janet R. Turner to Larry S. Bowman is valid.
b. If the Conservator concludes that power of attorney is valid, to determine whether the disclaimer by Mr. Bowman on behalf of Janet R. Turner with respect to her interest in the estate of Miller D. Turner was proper.
c. To investigate the propriety of Lariy S. Bowman’s exercise of his duties as attorney-in-fact for Janet R. Turner; and
d. To determine what assets comprise Janet R. Turner’s estate, and whether those assets are being properly administered in her best interests and for her benefit.
e.

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Bluebook (online)
64 Va. Cir. 354, 2004 Va. Cir. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-bowman-vaccrockingham-2004.