PRESENT: All the Justices
MARY ANN WEEDON, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF DOROTHY ROSE WEEDON OPINION BY v. Record No. 101901 JUSTICE CLEO E. POWELL January 13, 2012 LARRY S. WEEDON, ET AL.
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Gordon F. Willis, Judge
In this appeal of the judgment in a will contest, we
determine whether the circuit court erred in 1) determining that
the decedent lacked the requisite testamentary capacity when she
executed her contested will, 2) failing to properly weigh the
evidence of the witnesses at the time of the execution of the
contested will by ruling that the drafting attorney did not have
the right to delegate certain duties owed to the testator, and
3) ruling that the contested will was the result of undue
influence. We hold that the trial court erred in ruling that
the decedent lacked testamentary capacity and was unduly
influenced when executing the contested will.
FACTS AND PROCEEDINGS
Dorothy Rose Weedon, the decedent, was the mother of five
children: Larry S. Weedon, L. Perry Weedon ("Perry"), Billie
Thomas Weedon, Gloria Weedon Sharp and Mary Ann Weedon. In
2000, Dorothy was diagnosed with multiple myeloma. At that time, Mary Ann decided that she would help take care of her
mother.
In 2003, Dorothy contacted J. Richmond Low, Jr., an
attorney, for assistance in drafting a will, a power of
attorney, and an advanced medical directive. Low's assistant,
Rosalind Garnett, met with Dorothy and characterized her as a
woman who was "very adamant" and "once [Dorothy] told you this
is what she wanted, you knew that’s what she wanted." When Low
met with Dorothy to draft her will, he found her to be a woman
of few words who knew what she wanted and got it. 1 In the 2003
will, Dorothy made a monetary gift to her church. In addition,
she gifted a burial plot to Billie, Perry, Larry and Gloria.
Mary Ann, Billie and Larry would receive a gift of real property
upon Dorothy's death. In the event that Mary Ann predeceased
Dorothy, Mary Ann's gift was to be split between Billie and
Perry.
As Dorothy's illness progressed, Mary Ann took on
additional responsibilities in caring for her mother and spent
more time with her, including taking her mother to her dialysis
treatments. By 2006, Mary Ann left her job to be able to devote
more time to her mother's care.
1 Low met Mary Ann for the first time when Mary Ann sought assistance to probate her mother's 2008 will.
2 On Christmas Eve of 2006, Dorothy had a quarrel with Billie
about Dorothy's unwillingness to allow Gloria into her home for
Christmas. Mary Ann witnessed this disagreement and Billie
blamed her for it. After the incident, Dorothy informed Mary
Ann, Larry and Perry that she was taking Billie out of her will.
In May of 2007, Dorothy contacted Garnett to have Low draft
a new will for her. In it, she again gave a monetary gift to
her church. She also devised real property to Mary Ann, Perry
and Larry, but not Billie. This will provided that should Mary
Ann predecease her mother, Billie was not to receive any portion
of Mary Ann's share. Dorothy also removed Billie as the
alternate agent in her advanced medical directive.
On May 20, 2008, Dorothy was admitted to the Medical Center
at the University of Virginia (“UVA Hospital”) for an unplanned
orthopedic surgery. During the next week to ten days, a number
of pain medications were prescribed for and administered to
Dorothy, and she was confused at times as a result. During her
hospitalization, doctors discovered that surgery was required to
regulate Dorothy’s blood pressure so that she could continue
with dialysis. If Dorothy were required to stop dialysis
treatments, doctors expected that she would lapse into a coma
within 72 hours.
When the doctor told Dorothy the prognosis, she simply
stated that she wanted to contact Low. Mary Ann described her
3 mother’s mental state at the time as being “fine.” Mary Ann
suggested that Dorothy wait until after her surgery to contact
Low but Dorothy insisted that she wanted to do it then. Paula
Capobianco, a social worker in the palliative care unit, told
Mary Ann that she should help Dorothy contact Low before her
surgery so that she could have her affairs in order and have
some measure of peace.
On June 19, 2008, Garnett received a telephone call from
Mary Ann who told her that Dorothy was going to have surgery and
wanted to change her will. Garnett remembered Dorothy as a
previous client. Garnett told Mary Ann that Low was out of the
office but that she would get back to Mary Ann and Dorothy as
soon as she had spoken to Low. When Garnett spoke to Low, he
told her to call back and speak directly with Dorothy. Garnett
knew this to mean that she was to determine if Dorothy was
mentally competent to execute a will.
When Garnett spoke with Dorothy, she recognized Dorothy's
voice. 2 Garnett explained to Dorothy that they would need to go
through each provision in her 2007 will even though Dorothy had
already told Garnett that she desired to give everything to Mary
Ann. In response to each bequest of real property in the 2007
will, Dorothy stated that she wanted Mary Ann to get each item.
2 When asked to describe how Dorothy's voice sounded, Garnett said that it sounded "very fine."
4 Garnett did not review the sections that were already making
gifts to Mary Ann. Garnett made notes on a copy of the 2007
will as she spoke with Dorothy.
Dorothy asked that the new will be drawn up immediately
because she was having surgery soon. Garnett testified that
Dorothy’s voice sounded “exactly the same” as it did when they
spoke in 2007 regarding the modifications to the 2003 will.
When asked whether she had any concerns that someone was
pressuring Dorothy to make this change, Garnett responded
“[a]bsolutely not.” Although Garnett did not specifically
inquire as to Dorothy's mental capacity, she was confident that
Dorothy knew what she was doing and was doing what she wanted.
Garnett denied that there was anything in Dorothy’s voice that
would indicate that she was being threatened to leave everything
to Mary Ann.
After this initial phone call, Garnett realized that she
had not reviewed the section about the burial plots with
Dorothy, so she called her back. Mary Ann answered the phone
and Garnett asked her to ask Dorothy what she wanted to do with
the plots. Dorothy said that she wanted to keep the plots as
planned in the 2007 will but informed Garnett that there were
three additional plots. She said that she would like to use one
plot herself and would like to leave the remaining two to Mary
Ann.
5 Upon his return to the office, Low drafted a new will using
Garnett's notes. Low did not speak with Dorothy or Mary Ann nor
did he meet with Dorothy. Based on what Garnett told him, he
believed that Dorothy "was of herself, knew what she was doing,
and that nobody was going to hold a gun to her head." Low
trusted Garnett's judgment of Dorothy's mental state because
Garnett had been his assistant since 1993 or 1994. After Low
made the changes to the will, Garnett typed it and faxed it to a
social worker in Charlottesville.
Mary Ann was present when her mother executed the will in
the presence of Capobianco, Vicki Marsh, and Betsy Townsend.
Marsh is a patient representative at UVA Hospital. Marsh served
as a witness to the execution of the will, but she could not
remember who asked her to do so. Marsh did not recall many
specifics of this will execution but she knew that they "would
not have witnessed . . . the document if [Dorothy] was not
alert."
Capobianco also witnessed Dorothy execute her 2008 will,
but she later testified that she could not testify to Dorothy's
mental capacity at that time. Like Marsh, Capobianco did not
recall many details from that day. However, she explained that
she would have declined to witness the execution of the will had
she had any concerns about the proceeding. She testified that
Dorothy signed without assistance. Capobianco described Dorothy
6 as alert and stated that she was able to sit up by herself. At
no time during the execution of the will did she think that
Dorothy appeared confused or disinterested. In fact, Capobianco
testified that during her hospital stay, Dorothy was only
confused once or twice because of "some trouble I think related
to infection."
Townsend, a patient representative, served as the notary
during the execution of Dorothy's will. In her capacity as a
patient representative and notary, Townsend has refused to serve
as a notary when "it's either obvious that the patient is not
even awake enough to, or capable enough to understand or to talk
to or whatever, or if I go up and one of the staff says this
person is not competent . . . ." Townsend had no recollection
of serving as the notary in this case.
The next day, during the surgery, the lower lobe of
Dorothy’s left lung collapsed. On the morning of Monday, June
23, 2008, Dorothy was “agitated and not doing well.” Mary Ann
called her siblings. Dorothy died later that day.
In addition to gifts made in her will, Dorothy left a
certificate of deposit for Gloria, valued at $5,700, and another
certificate of deposit for Mary Ann, valued at approximately
$16,000.
Following Dorothy's death, Mary Ann probated the 2008 will
and qualified as executor for the 2008 will. Larry, Perry,
7 Billie, and Gloria sued Mary Ann, individually and as executor, 3
to challenge the 2008 will. At the trial, the circuit court
allowed Dr. Frederick A. Phillips, the medical examiner for the
City of Fredericksburg and surrounding counties, to be
qualified, over Mary Ann’s objection, as an expert to give “an
opinion as to a person’s mental state as it relates to the cause
of death.” Based solely on a review of Dorothy’s medical
records, Dr. Phillips opined that during the last week of her
life, Dorothy would have been confused with intervals of
lucidity. He further testified that “[c]ommunication skills
would be I think – I know would be quite limited.” He opined
that she “would become less responsible for her words, her
thoughts, her activities. She would be literally in a chemical
fog, if you will.”
In support of their argument that the 2008 will was not
valid, Gloria, Billie, Larry and Perry generally blamed Mary Ann
for that will. Gloria and Billie believed that their mother was
very protective of Mary Ann and Larry said that Dorothy often
told him that she had to do things for Mary Ann because "she
hasn't got anybody." They all claimed to have a good
relationship with their mother. Despite this, Gloria admitted
3 Hanover Baptist Church was also named as a defendant in this action. However, the claims against Hanover Baptist Church were dismissed with prejudice by a Consent Order dated February 12, 2010.
8 that she had not visited her mother during hospitalizations
since 2006 or 2007 because she received an email from Perry or
his wife telling her not to visit because it was too upsetting
for Dorothy. The children also stated that they helped their
mother financially and physically by taking her to appointments
and doing work around her home.
With the exception of Gloria, the children described
visiting their mother in the hospital. They opined that
Dorothy's health was deteriorating during this time. Billie
stated that Dorothy did not immediately recognize him when he
came to visit. He described a telephone conversation that he
overheard her have with Mary Ann on June 16th as "disoriented."
He said that on most visits, "you had to extract a response from
[Dorothy]." Perry testified that around June 14 or 15, he
brought Dorothy her favorite food but she had no interest in
eating it. Larry said that on June 15, his mother stopped
calling him by the nickname she gave him at birth, and he counts
that as the day that she died. He also testified that Dorothy
often called him by his brothers' names or referred to his
children by the wrong names.
Larry and Perry claimed that Mary Ann attempted to deny
them access to their mother and her doctors. Without going into
specifics, Perry testified that Dorothy frequently told him
things that she did not want Mary Ann to hear.
9 Nancy Cable testified as a rebuttal witness on behalf of
Mary Ann. Nancy testified that she knew Dorothy "very well"
from 1992 until her death in 2008. In fact, in 2003 and 2007,
Nancy served as a witness for Dorothy's wills, but she never
read the wills nor did Low read the wills to her. Nancy also
testified that she is "close, personal friends" with Mary Ann.
Nancy denied that her relationship with Mary Ann had any effect
on her testimony.
Nancy saw Dorothy on June 1, 2008 and then again on June
22, 2008. Nancy described Dorothy as being much weaker and
thinner than the last time she had seen Dorothy. She also
testified that Dorothy had difficulty getting comfortable.
Nancy testified that when she visited Dorothy on June 22,
2008, the day before Dorothy died, Dorothy immediately
recognized her and that they began "talking about everything"
including Nancy's recent travels. Nancy agreed to Dorothy's
request that she spend the night with her. During this time,
conversation would stop and then resume. At one point, Dorothy
mentioned that she had decided to change her will. Dorothy also
mentioned that she had not seen Perry since Nancy had left on
June 1. Nancy said that Dorothy told her "very declaratively"
that she wanted "Mary Ann [to] have what she had." The two then
talked about Nancy's children and her doctors. Nancy brought
her food from the cafeteria. During the night of June 22 and
10 the early morning hours of June 23, the chaplain came in several
times and the three prayed. Dorothy requested the Lord's Prayer
but did not say it. Nancy did not know whether Dorothy could
not or chose not to say it. Dorothy died later that day.
At the conclusion of the evidence, the trial court found
that Dorothy became more mentally and physically "feeble" during
her hospitalization, but she still had "periods of lucidity."
The court noted that Dorothy was unable to make the telephone
call to Low's office by herself and that Mary Ann read the 2008
will to Dorothy before it was executed.
The court held that Mary Ann had not carried her burden to
show that Dorothy had testamentary capacity at the time the will
was drafted.
In cases like this, there are certain protections that occur when a lawyer is directly involved with someone who wishes to have a Will drafted. The lawyer has certain professional fiduciary duties to see that certain thresholds are reached in drafting the Will. I don't think those professional duties can be delegated to a non-attorney; or if they are, then the protections are weakened. I don't think an attorney can rely solely on the representations of a non-attorney employee to reach certain decisions that are required by a professional in drafting a Will and seeing that Will is properly executed for a client. It is a factor that the Court has to consider in reaching its decision here today.
11 The trial court reiterated that "[a]ll of Mr. Low's efforts on
June 19th, of 2008, on behalf of Dorothy Rose Weedon, were done
through Mrs. Garnett and primarily Mary Ann Weedon."
The court further ruled that
the proponent has failed to carry its burden to show that at the time that the Will was signed, the June 19th, 2008 Will, that [Dorothy] had testamentary capacity at that time. That is based on the lack of relationship directly with the attorney who drafted the Will and even more so – there's even more of a disconnect between the attorney and the decedent with regard to its execution.
The trial court further held that even if Mary Ann had
proven that Dorothy had the requisite testamentary capacity at
the time that she executed the will, "the opponent of the Will
has shown by clear and convincing evidence that there was undue
influence in this case." In support of this holding, the court
specifically found that
the decedent was feeble in mind and body at the time the Will was executed. There was obviously a very close, confidential, and fiduciary relationship between Mary Ann Weedon and the decedent. Mary Ann Weedon had her Power of Attorney and had been her primary caretaker, based on the evidence, over the last couple of years. And the testator had obviously previously expressed a contrary intention in the 2007 Will with regards to the disposition of her property.
Accordingly, the trial court ruled that the 2008 will had
been impeached and the 2007 will should proceed to probate.
12 II. ANALYSIS
A. Testamentary Capacity
The proponent of a will bears the burden of proving by a
preponderance of the evidence that at the time the testatrix
executed her will she possessed testamentary capacity, i.e.,
"'was capable of recollecting her property, the natural objects
of her bounty and their claims upon her, knew the business about
which she was engaged and how she wished to dispose of the
property.'" Gibbs v. Gibbs, 239 Va. 197, 199, 387 S.E.2d 499,
500 (1990)(quoting Tabb v. Willis, 155 Va. 836, 859, 156 S.E.
556, 564 (1931)).
[T]he proponent of the will is entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for the valid execution of the will. Once the presumption exists, the contestant then bears the burden of going forward with evidence to overcome this presumption, although the burden of persuasion remains with the proponent.
Id. at 200, 387 S.E.2d at 501. This presumption arises where
the will is
in writing and signed by the [testatrix] . . . in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
Code § 64.1-49.
13 "To show incapacity, the contestants need only go forward
with evidence sufficient to rebut the presumption of
testamentary capacity." Gibbs, 239 Va. at 200, 387 S.E.2d at
501. The burden of persuasion remains with the proponent. Id.
We will not reverse the trial court unless its decision is
plainly wrong or without evidence to support it. See Gilmer v.
Brown, 186 Va. 630, 642, 44 S.E.2d 16, 21 (1947) (a trial
court's ruling "should not be disturbed unless its conclusions
are at variance with the evidence.").
The parties do not appear to question that the will was
duly executed. Therefore, the presumption arises. We will
assume without deciding that the testimony of the opponents of
the will was sufficient to overcome this presumption.
Therefore, our focus is on whether Mary Ann successfully
produced evidence of Dorothy's testamentary capacity.
The trial court in this case found that Mary Ann did not
meet her burden of proving that Dorothy had testamentary
capacity at the time that she executed the contested will. The
court largely based this decision on its ruling that Low, the
attorney who drafted the will, never met or spoke with Dorothy
himself and impermissibly delegated the determination of
Dorothy's capacity to his assistant. The basis for this ruling,
however, is unsupported by the law.
14 Although not the subject of the appeal, we recently found
testamentary capacity based, in part, on testimony from a
paralegal who drafted a will. Parish v. Parish, 281 Va. 191,
195, 704 S.E.2d 99, 102 (2011). There, we reiterated that
" '[i]n determining the mental capacity of a testator, great
weight is to be attached to the testimony of the draftsman of
the will, of the attesting witnesses, and of attending
physicians.' " Id. at 200, 704 S.E.2d 105 (quoting Hall v.
Hall, 181 Va. 67, 76, 23 S.E.2d 810, 814 (1943)).
Larry attempts to distinguish Parish from the instant case
because in Parish, the paralegal who met with the testator
drafted the will and here, the assistant evaluated the
testator's capacity and noted her desires but the attorney
actually drafted the will. Nothing supports this distinction.
We have never ruled, nor do we here, that the weight ascribed to
the testimony of the professional speaking to the testatrix for
the purpose of drafting the will is lessened if that person does
not actually draft the will. Here, Garnett spoke with Dorothy
regarding the changes to be made to the will. Garnett
understood that the purpose of speaking to Dorothy was to assess
her testamentary capacity. Garnett testified that she was
confident Dorothy knew what she was doing and was doing what she
wanted. Thus, the trial court erred as a matter of law in
15 giving diminished weight to Garnett's testimony because she was
not the literal "drafter" of the will.
We also conclude that the court erred in placing undue
weight on the fact that Dorothy did not place the call to Low's
office herself. The fact that she did not place the call is
clearly outweighed by the fact that she spoke with Garnett and
clearly expressed her desires as to how she wanted her will
changed.
Finally, we hold that the trial court erred in placing more
weight on the testimony of Dr. Phillips and Dorothy's children
who were not present when she executed the will than it did on
the testimony of the witnesses, the notary, and Mary Ann who
were present when the will was executed. " '[I]t is the time of
execution of the will that is the critical time for determining
testamentary capacity.' '[T]he testimony of those present at
the factum - when the will is executed - is entitled to the
greatest consideration.' " Parish, 281 Va. at 200, 704 S.E.2d
at 104 (quoting Thomason v. Carlton, 221 Va. 845, 853, 276
S.E.2d 171, 175 (1981)). " 'Neither sickness nor impaired
intellect is sufficient, standing alone, to render a will
invalid.' " Pace v. Richmond, 231 Va. 216, 219, 343 S.E.2d 59,
61 (1986)(quoting Tate v. Chumbley, 190 Va. 480, 495, 57 S.E.2d
151, 158 (1950)).
16 None of the witnesses testified that Dorothy did anything
that caused them concern. Indeed, Capobianco testified that she
would have declined to witness the execution of the will had she
had any concerns about the proceedings. Moreover, Dr. Phillips
testified that Dorothy would have periods of lucidity and
nothing from the witnesses involved in the drafting and the
execution of the will indicated that Dorothy was not lucid at
the time that she executed the contested will. Indeed, both
witnesses testified that Dorothy was alert. Finally, the
certificate to which the notary affixed her signature stated, in
relevant part
[b]efore me, the undersigned authority, on this day, personally appeared Dorothy Rose Weedon . . . declared to me and to the witnesses in my presence that the said instrument is her last will and testament and that she had willingly signed and executed it in the presence of said witnesses as her free and voluntary act . . . .
Thus, the trial court's decision that Dorothy lacked
testamentary capacity is based on an incorrect view of the law
and an improper weighing of the evidence. Moreover, it is
without evidence to support it.
B. Undue Influence
We have previously held that
in the will context "a presumption of undue influence arises when three elements are established: (1) the testator was old when his will was established; (2) he named a beneficiary who stood in a relationship of confidence or
17 dependence; and (3) he previously had expressed an intention to make a contrary disposition of his property."
Parish, 281 Va. at 202, 704 S.E.2d at 105-06 (quoting Martin v.
Phillips, 235 Va. 523, 527, 369 S.E.2d 397, 399 (1988)). 4 Undue
influence must be established by clear and convincing evidence.
Gibbs v. Gibbs, 239 Va. 197, 201, 387 S.E.2d 499, 501 (1990).
The evidence here proves that Mary Ann, who was the sole
recipient of all of Dorothy's real property under the contested
will, had a close relationship with her elderly mother and spent
a great deal of time with her. Mary Ann also had power of
attorney for her mother and had acted in that capacity. The
evidence also proves that Dorothy had at least two prior wills
that expressed contrary dispositions of her property. Thus, the
evidence gives rise to the presumption of undue influence, but
this does not end the inquiry.
"The undue influence which will vitiate a will must be of such a character as to control the mind and direct the action of the testator." "[I]t must be sufficient to destroy free agency on the part of the . . . testator; it must amount to coercion – practically duress. It must be shown to the satisfaction of the court that the party had no free will". "Resistable persuasion, solicitation, advice, suggestions, and
4 We further held in Parish that the age and contrary disposition elements that give rise to the presumption were irrelevant in that case as the testator was of a young age when he incurred a severe brain injury and he had no money until he received compensation for that injury. 281 Va. at 202-03, 704 S.E.2d at 106.
18 importunity do not constitute sufficient evidence of undue influence."
"The burden of showing undue influence rests upon those who allege it, and it cannot be based upon bare suggestion, innuendo, or suspicion."
Pace, 231 Va. at 224, 343 S.E.2d at 64 (internal quotation marks
and citations omitted).
Not all influence is undue in the legal sense. See generally T. Atkinson, Law of Wills § 55, p. 256, et seq. (2d ed. 1953). "To be classed as 'undue', influence must place the testator in the attitude of saying: 'It is not my will but I must do it.' " Ginter v. Ginter, 101 P. 634, 636 (Kan. 1909). To support a jury verdict of undue influence, the evidence must be "sufficient to show that the person executing the will was deprived of his volition to dispose of his property as he wished. There must be manifest irresistible coercion which controls and directs the testator's actions." Wilroy v. Halbleib, 214 Va. 442, 446, 201 S.E.2d 598, 601 (1974).
Gill v. Gill, 219 Va. 1101, 1105-06, 254 S.E.2d 122, 124 (1979).
In Gill, Dr. John Russell Gill married Patricia Wing Gill
in 1957, four years after the death of his first wife. Id. at
1103, 254 S.E.2d at 122. "In 1972, he executed a formal will
granting [Patricia] a life estate in a trust and the marital
residence, with remainder to his grandchildren. [He] died April
30, 1976 leaving a holographic will dated January 22, 1976
bequeathing five dollars to each of his two sons by his first
marriage and the residue of his estate in fee to his widow."
19 Id. at 1103, 254 S.E.2d at 122-23 (footnote omitted). In that
case, the evidence proved that
gradually over the course of [the] marriage, Mrs. Gill became the dominant spouse, persuading her husband to change his fiscal policies, his religious affiliation, his work routine, his societal views, and his personal habits; that her influence increased as his health declined; that the holographic instrument was not witnessed the day it was dated as Dr. Brown and Markham testified; that, indeed, it was not even written until later at a time when testator was confined to his home, alone with his wife; and that testator wrote and pre-dated the instrument, at his wife's direction, to give the appearance it had been executed in anticipation of surgery.
Id. at 1105, 254 S.E.2d at 124. Based on this evidence, a jury
determined that the January 22, 1976 instrument was not the
testator's true last will and testament. Id. at 1103, 254
S.E.2d at 123. On appeal, this Court held "as a matter of law
that the evidence was insufficient to support a finding of undue
influence" and reversed the circuit court. Id. at 1107, 254
S.E.2d at 125.
"The ultimate burden of proof 'is always upon him who
alleges fraud.'" Id. at 1106, 254 S.E.2d at 125 (quoting Wallen
v. Wallen, 107 Va. 131, 150, 57 S.E. 596, 599 (1907)). Here,
the trial court focused on the circumstantial evidence that
raised the presumption of undue influence 5 while overlooking the
5 Specifically, the trial court found that "the decedent was feeble in mind and body at the time the Will was executed. There was obviously a very close, confidential, and fiduciary
20 ultimate inquiry: whether Dorothy's will was overridden.
Although a presumption of undue influence was established, in
the final analysis the evidence falls short of establishing
undue influence by clear and convincing evidence. The evidence
shows that Dorothy had strained relationships with some of her
other children and spent more time with Mary Ann than her other
children. Even the other children testified that Dorothy was
protective of and concerned about Mary Ann. That Billie and
Lewis claimed that Mary Ann blocked their access to Dorothy's
doctors is of little consequence as it has nothing to do with 6 whether Dorothy executed the 2008 will against her own wishes.
As to her previously executed wills, no one asserts that Mary
Ann exerted undue influence over Dorothy when either of those
wills were drafted even though the first will specifically
omitted Gloria and the second will omitted Gloria and Billie
from gifts of real property. Garnett testified that in 2003 and
relationship between Mary Ann Weedon and the decedent. Mary Ann Weedon had her Power of Attorney and had been her primary caretaker, based on the evidence, over the last couple of years. And the testator had obviously previously expressed a contrary intention in the 2007 Will with regards to the disposition of her property." 6 Billie's testimony that while visiting Dorothy in the hospital, he noticed an abrasion on her head should not be afforded undue weight as his observation was clearly removed in time from the day that Dorothy executed her 2008 will. He stated that Dorothy told him that Mary Ann had shoved her up the garage steps because Dorothy was not moving quickly enough. However, Dorothy was hospitalized at the time that Billie noticed the mark and Billie, indeed, referred to the "abrasion" as a scar.
21 2007, Dorothy knew what she wanted done and demanded that it be
done right away. Importantly, Garnett further testified that
Dorothy was no different in 2008 when Dorothy decided to draft a
new will in advance of impending surgery that could, if not
successful, result in her lapsing into a coma and dying.
Indeed, as previously stated, Garnett testified that
Dorothy "knew what she was doing and was doing what she wanted." 7
This testimony was in clear contrast to that of the siblings who
testified in generalities that they believed that Mary Ann was
the reason the will was changed. Perhaps one of the most
telling pieces of evidence is the discussion that Dorothy had
with Nancy when Mary Ann was not present. On the day before she
died, Dorothy volunteered that she had changed her will because
she wanted to leave everything to Mary Ann.
Similar to the evidence in Gill, testimony that the
beneficiary of the contested will in this case asked the
siblings not to visit, was the only sibling who was talking to
the doctor, and isolated the testator is insufficient to prove
7 Though relevant to the issue of testamentary capacity, this evidence also has bearing upon undue influence. Much like our reliance on the evidence in Gill, that the testator drafted the January 22, 1976 will entirely in his own handwriting to conclude that it showed "a sedulous act of volition, deliberate and independent of external influence[,]" 219 Va. at 1107, 254 S.E.2d at 125, Garnett's testimony similarly reveals that Dorothy, who was "doing what she wanted," was acting of her own volition and not as the result of external influence.
22 undue influence by clear and convincing evidence. Although the
evidence in this case certainly proves that Dorothy was very
ill, in a great deal of pain, and dying, the contestants did not
prove by clear and convincing evidence that Dorothy was in the
position of saying " '[i]t is not my will but I must do it.' "
Gill, 219 Va. at 1105-06, 254 S.E.2d at 124. Thus, we conclude
that the evidence in this case rebuts the presumption of undue
influence.
III. CONCLUSION 8
For the foregoing reasons, we will reverse the judgment of
trial court and remand with instructions that the 2007 will be
withdrawn from probate and that the 2008 will be admitted to
probate.
Reversed and remanded.
JUSTICE MIMS, dissenting.
I believe the circuit court’s finding that Dorothy was
subjected to undue influence was not plainly wrong and that
there was evidence to support it. Therefore I dissent.
8 Mary Ann also assigns error to the trial court's admission of and the weight given to Dr. Phillip's testimony as well as the trial court's failure to rule that the contestants did not have sufficient corroborative evidence to support their allegations of lack of testamentary capacity and undue influence. Because we hold that the trial court erred in determining that Dorothy lacked testamentary capacity and that she was unduly influenced by Mary Ann, these assignments of error are moot and we decline the invitation to address them.
23 Upon review of a trial court’s finding of undue influence,
this Court asks whether that finding was plainly wrong or
without evidence to support it. See Parish v. Parish, 281 Va.
191, 201-02, 704 S.E.2d 99, 105 (2011) (“where the case has been
fairly presented and there is credible evidence to support the
conclusion of the fact-finder, this court will not disturb the
verdict”) (internal quotation marks omitted); Code § 8.01-680
(judgment of the circuit court “shall not be set aside unless it
appears from the evidence that such judgment is plainly wrong or
without evidence to support it”).
The inquiry of this Court is whether the record contains
“credible evidence to support the conclusion” of the circuit
court. Id. In my view, there is such credible evidence to
support the circuit court’s finding that Dorothy was the victim
of Mary Ann’s undue influence.
I agree with the majority that the evidence in this case is
sufficient, using a clear and convincing standard, to trigger
the presumption of undue influence pursuant to the factors
recently set forth in Parish. See 281 Va. at 202, 704 S.E.2d at
105-06. However, the majority concludes that “the evidence
falls short of establishing undue influence by clear and
convincing evidence.” The majority bases this conclusion on its
view “that [Mary Ann’s] evidence in this case rebuts the
presumption of undue influence.”
24 However, the proper inquiry for this Court, on review of
the circuit court’s finding of undue influence, is different.
This Court must determine whether the trial judge was plainly
wrong when he assessed the credibility of the witnesses and
weighed their testimony to conclude that Mary Ann failed to
rebut the presumption of undue influence.
After the presumption of undue influence arose, “the burden
of producing evidence tending to rebut the presumption shift[ed]
to” Mary Ann. Id. at 203, 704 S.E.2d at 106. Yet a review of
Mary Ann’s evidence shows that it was predominantly focused upon
rebutting the allegation of testamentary incapacity and only
touched peripherally upon the question of undue influence.
The majority relies upon four aspects of the evidence to
conclude that the presumption of undue influence had been
overcome. I will examine each in turn.
First, the majority notes that Dorothy had strained
relationships with some of her other children and spent more
time with Mary Ann. While both of these facts are true, their
bearing upon the issue of undue influence is not readily
apparent. Second, the majority emphasizes that Dorothy was
protective of and concerned about Mary Ann. Likewise, this is
true, but it does not adequately explain why Dorothy, mere days
before her death and with reduced mental capacity, would make a
25 dramatic alteration of her testamentary wishes for Mary Ann’s
benefit.
The majority assigns importance to Garnett’s testimony that
“in 2003 and 2007, Dorothy knew what she wanted done and
demanded that it be done right away [and she] was no different
in 2008.” This evidence may be more relevant to capacity than
undue influence. In fact, it may bolster the undue influence
presumption rather than refute it, because in both 2003 and 2007
there was a precipitating causal event that angered Dorothy that
was not present in 2008. In 2003, Dorothy disinherited Gloria
after Gloria told the church minister that Dorothy was ill. In
2007, Dorothy disinherited Billie after a confrontation in her
trailer regarding Gloria being with the family for Christmas.
Finally, the majority relies upon Nancy’s testimony that
Dorothy volunteered that she wanted to leave everything to Mary
Ann. While not doubting the veracity of this statement, one
must question whether it is an expression of her free will or
further evidence of the pervasiveness of the undue influence. I
would not disturb the conclusion of the trial judge, who saw and
heard all the witnesses, determined their credibility, and
weighed their testimony. See Mastin v. Theirjung, 238 Va. 434,
438-39, 384 S.E.2d 86, 88 (1989) (finder of fact is “sole
judge[] of the weight and credibility of the evidence”).
26 The record is replete with additional testimony regarding
Mary Ann’s unusual and domineering relationship with Dorothy,
especially in the final sad weeks of Dorothy’s life. Lewis
characterized that relationship as Dorothy being afraid of Mary
Ann “get[ting] mad” and “throwing a fit on her.” Most
tellingly, Mary Ann spent approximately 12 hours per day alone
with her in the hospital and limited her siblings’ access to
their mother. In the hospital, Dorothy was confused as to the
identities of her children and grandchildren and was curled up
in a fetal position much of the day, reluctant to contravene
Mary Ann’s wishes.
Billie testified that during one of his visits to the
hospital, he asked Dorothy about an abrasion on her head.
Dorothy told him that Mary Ann shoved her up the garage steps at
Mary Ann’s house, and that she fell into a wall. Billie also
testified that Mary Ann used her power of attorney to block her
siblings’ access to Dorothy’s doctors. Lewis testified that
Mary Ann threatened to have him “locked up” for visiting his
mother in the hospital. He testified that on another occasion,
he spoke with his mother on the phone about visiting, but that
she called back a few minutes later and, with Mary Ann in the
background commanding her to cancel the visit, submitted to Mary
Ann’s demand.
27 In light of this evidence, the trial judge reasonably could
give less credibility to the testimony of Mary Ann, who at trial
was the sole witness regarding what transpired when Dorothy
decided to draft a new will. For these reasons, I believe we
should defer to the circuit court and I cannot conclude that its
finding of undue influence was plainly wrong or without evidence
to support it.
For these reasons I dissent.
JUSTICE MCCLANAHAN, dissenting.
Regarding the issue of undue influence, I agree with
Justice Mims. However, because I would affirm the trial court
on the issue of testamentary capacity, it is not necessary to
address the issue of undue influence, and therefore I dissent
separately.
“A trial court sitting without a jury is the judge of the
weight of the testimony and the credibility of the witnesses.”
Government Emples. Ins. Co. v. United Servs. Auto. Ass’n, 281
Va. 647, 655, 708 S.E.2d 877, 882 (2011). “Nevertheless,
‘[t]here must be some evidence in order to support the
verdict.’ ” Id. (quoting Barnes v. Hampton, 149 Va. 740, 744,
141 S.E. 836, 837 (1928)). In the instant case, on the issue of
testamentary capacity, if one gives more credence and weight to
the testimony of the medical examiner and the siblings, the
28 conclusion reached by the trial court follows. On the other
hand, if more credence and weight is given to the testimony of
Mary Ann, the social worker and the patient representatives, one
may come to the conclusion reached by the majority in this case.
It is not the appellate function, however, to engage in such
reweighing.
"To overcome the presumption of [testamentary] capacity, we
do not require clear and convincing proof; rather 'the
contestants need only go forward with evidence sufficient to
rebut the presumption.' " Parish v. Parish, 281 Va. 191, 199,
704 S.E.2d 99, 104 (2011) (quoting Gibbs v. Gibbs, 239 Va. 197,
201, 387 S.E.2d 499, 501 (1990)). Here, there were facts before
the circuit court sufficient to rebut the presumption, and I
would not substitute my judgment on the credibility of witnesses
and the weight accorded their testimony. See Commonwealth v.
Jackson, 276 Va. 184, 197, 661 S.E.2d 810, 816 (2008) (" '[T]he
credibility of witnesses and the weight accorded their testimony
are matters solely for the fact finder who has the opportunity
of seeing and hearing the witnesses.’ ” (quoting Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).