Glynn v. Kenney
| Docket Number | Record No. 0327-22-1 |
| Decision Date | 21 March 2023 |
| Citation | 77 Va.App. 70,884 S.E.2d 259 |
| Parties | John F. GLYNN and Kevin J. Glynn v. Vita KENNEY, Executrix of the Estate of Patricia Lynch-Carbaugh |
| Court | Virginia Court of Appeals |
M. Bradley Brickhouse, Virginia Beach (Ashley B. Horbal; Oast & Taylor PLC, on brief), for appellants.
Jana Nattermann (Erin K. DeBoer; Toscano Law Group, P.C.; Anchor Legal Group, PLLC, on brief), for appellee.
Present: Judges Humphreys, AtLee and Raphael
OPINION BY JUDGE ROBERT J. HUMPHREYS
Following a hearing on Vita Kenney's bill in equity to establish a lost will, the Circuit Court of the City of Virginia Beach ordered a copy of the last will and testament of Patricia Lynch-Carbaugh admitted to probate. John F. Glynn and Kevin J. Glynn, Lynch-Carbaugh's sons, now appeal, arguing that the circuit court erred by finding that Kenney rebutted the presumption that a missing will was revoked by clear and convincing evidence.
We state the facts in the light most favorable to the prevailing party below, in this case, Kenney, the proponent of the missing will. See Edmonds v. Edmonds , 290 Va. 10, 24, 772 S.E.2d 898 (2015). Patricia Lynch-Carbaugh died on March 17, 2021. On May 25, 2021, Vita Kenney, as executrix of her estate, filed a bill in equity to probate a copy of Lynch-Carbaugh's last will. Kenney alleged that Lynch-Carbaugh had validly executed a last will and testament on July 9, 2020, had that will in her possession at her death, and therefore died testate. Kenney further alleged that "the condition of" Lynch-Carbaugh's home prevented Kenney from locating the original will. Kenney alleged that appellants were Lynch-Carbaugh's sole heirs at law and that a living trust established by Lynch-Carbaugh was the sole beneficiary of the will.
At the time of her death, Lynch-Carbaugh appeared to have difficulty maintaining her home. Kenney introduced photographs and videos that showed the home "in disarray." One witness testified that the home "looked like a shredder had gone through the house and littered documents all over the home." Additionally, the home showed evidence of a rodent infestation and bottles filled with apparent human waste were found in the home. Due to the condition of the home, Kenney had difficulty finding even the most essential objects of daily life, such as Lynch-Carbaugh's purse and car keys. Kenney hired a professional remediation company to clean out Lynch-Carbaugh's home.
Attorney Donna Wilson prepared the will that Kenney sought to establish. Wilson first prepared a will in 2018 for Lynch-Carbaugh, who then enrolled in a "maintenance program" that allowed her to update her estate planning documents at no additional cost. Wilson met with Lynch-Carbaugh three times to update her documents. Lynch-Carbaugh "had possession" of her will and other legal documents when she left Wilson's office and "would have kept [the documents] in her home" in between meetings. Wilson revised Lynch-Carbaugh's documents "several times" to "make changes" to which "charities" would benefit, although Lynch-Carbaugh was "fairly consistent" with keeping friends as beneficiaries. The most recent will was executed in July 2020. The will contained a provision that "specifically disinherit[ed]" the Glynns "for reasons personal to [Lynch-Carbaugh] and known to them." Lynch-Carbaugh did not contact Wilson after July 2020 to request changes to her documents or "share any reason" that "she wanted to revoke" her will. Lynch-Carbaugh renewed her enrollment in the maintenance program for the period of September 1, 2020 through August 31, 2021, and Wilson testified it "would be unlikely" that Lynch-Carbaugh would have gone to another attorney to make changes to her estate plan.
The Glynns moved to strike the evidence at the conclusion of Kenney's case-in-chief, arguing that the will had been in Lynch-Carbaugh's possession and that Kenney must therefore prove that Lynch-Carbaugh did not destroy the will. All that Kenney had proved, they argued, was that Lynch-Carbaugh lived in a "messy house." The circuit court denied the motion. The Glynns presented no evidence and renewed their motion to strike the evidence.
The Glynns argued that Lynch-Carbaugh repeatedly accessed her will to take it to Wilson for updates and that she kept "it safe" and "accessible." Moreover, she "had plans to go back and talk about it again" with Wilson, proving that "she was not certain on her estate plan," which had been changed more than once. The presumption of revocation applied, and Kenney had not overcome it with evidence showing only that the will "could have been chewed up by rodents," "could be lost," or that "it could still be" in the house. The Glynns also contended that merely not knowing what happened to the will, which was all that Kenney had proved, was not enough to overcome the presumption of revocation.
After argument by counsel, the circuit court found that Lynch-Carbaugh was in possession of the will at her death and emphasized that Lynch-Carbaugh had disinherited the Glynns. She "had a clear understanding" of how she wished to dispose of her assets, "and a very clear and well-established method" of "expressing those desires and intent" through "formally executed written documents such as" the disputed will. The circuit court thought it was unlikely that she would have revoked her will without consulting her attorney, especially because she had renewed her enrollment in the firm's maintenance program. Additionally, there was no evidence that showed that Lynch-Carbaugh indicated to anybody that she had destroyed or revoked her will. Furthermore, the circuit court extensively described the state of Lynch-Carbaugh's house. The circuit court noted that the condition of the house "provides a very clear and understandable and rational explanation for why" the will "has been difficult to locate."
The circuit court found "by clear and convincing evidence that the proponent or the complainant in this case has established that the will was lost and that it was not destroyed with the intention to revoke it." Accordingly, the circuit court denied the renewed motion to strike.
By final order of January 31, 2022, the circuit court ordered that the copy of the will presented by Kenney be admitted to probate and that Kenney be permitted to qualify as the personal representative of Lynch-Carbaugh's estate. This appeal followed.
The Glynns make two arguments on appeal: first, that the circuit court erred as a matter of law by holding that a proponent of a missing will may overcome the presumption that a missing will was revoked despite offering multiple theories as to the cause of the will's absence. Second, that the evidence was insufficient to establish by clear and convincing evidence that Lynch-Carbaugh did not intend to revoke her will. We disagree with both arguments.
Under Virginia law:
Where an executed will in the testator's custody cannot be found after his death there is a presumption that it was destroyed by the testator animo revocandi. This presumption, however, is only prima facie and may be rebutted, but the burden is upon those who seek to establish such an instrument to assign and prove some other cause for its disappearance, by clear and convincing evidence, leading to the conclusion that the will was not revoked.
Brown v. Hardin , 225 Va. 624, 626, 304 S.E.2d 291 (1983) (internal citations omitted). The proponent of the will Edmonds , 290 Va. at 23, 772 S.E.2d 898.
The Glynns first argue that, as a matter of law, the proponent of a missing will cannot overcome the presumption by clear and convincing evidence if the proponent offers multiple theories of the will's whereabouts. The Glynns cite to Harris v. Harris , 216 Va. 716, 222 S.E.2d 543 (1976), to support their argument. In Harris , the Supreme Court held that the proponent of a missing will failed to rebut the presumption when "other equally probable inferences favorable to the opponents could be drawn from the same evidence." 216 Va. at 720, 222 S.E.2d 543. The Glynns argue that because Kenney offered multiple theories, from which "equally probable inferences" could be drawn, that Harris requires a per se rule that Kenney cannot meet her burden. We disagree.
The Virginia Supreme Court has held, on multiple occasions, that the proponent of a missing will is not required to prove what happened to the will. In Brown , the Court held that "it was not incumbent upon [the proponent] to prove ... specifically what became of said will; and that [the proponent] only had to prove by clear and convincing evidence that [the testator] did not destroy the will with the intention of revoking it." 225 Va. at 637, 304 S.E.2d 291. In Edmonds , the Court held that 290 Va. at 23, 772 S.E.2d 898.
Harris stands for the proposition that the clear and convincing standard cannot be met by evidence that is capable of producing "equally probable inferences." 216 Va. at 720, 222 S.E.2d 543. The fact remains, however, that the proponent is under no burden to prove anything regarding the whereabouts of the will. The proponent's only burden in overcoming the presumption is to prove, by clear and convincing evidence, that the testator did not intend to revoke their will. See, e.g. , Edmonds , 290 Va. at 23, 772 S.E.2d 898 ; Brown , 225 Va. at 626, 304 S.E.2d 291. While the Glynns are correct that the clear and convincing standard cannot be met by equivocating evidence, Virginia law is clear...
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