Hood v. Hood
| Docket Number | 22-0214 |
| Decision Date | 03 November 2023 |
| Parties | Stephen M. Hood, Plaintiff Below, Petitioner. v. Linda Hood, individually, and as the Executrix of the Estate of Dorothy Hood and as the Executrix of the Estate of Jeffrey E. Hood, Defendants Below, Respondents. |
| Court | Supreme Court of West Virginia |
In this will contest, Petitioner, Stephen M. Hood ("Stephen"),[1] by his counsel, Mark W. Kelley and John J Brewster, appeals the Circuit Court of Cabell County's award of summary judgment to Respondents,[2] appearing by their counsel, William M. Mundy and Leon K. Oxley, finding that there was no genuine issue of material fact that Dorothy A. Hood ("Dorothy") had testamentary capacity to execute her September 7, 2007 will. Stephen argues that the circuit court erred by finding there was no genuine issue of material fact as to whether Dorothy had testamentary capacity at the time the will was executed. Stephen also appeals the circuit court's award of summary judgment to Respondents based upon its finding that there were no genuine issues of material fact on the issues of undue influence and tortious interference with a testamentary bequest. Following oral argument on October 11, 2023, we conclude there are, in fact, issues of material fact and the circuit court erred in granting summary judgment.
This Court has considered the parties' briefs, the record on appeal, and the oral argument of the parties. From that review, the Court finds that the circuit court erred in granting summary judgment to Respondents. Accordingly, this case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is appropriate for reversal and remand by memorandum decision.
Dorothy died testate on July 20, 2013. She had two children, Stephen and Jeffrey. On September 7, 2007, she signed a simple will that stated, in full:
This will was signed by Dorothy as well as two witnesses, Paul T. Farrell ("Farrell") and Neisha E. Brown ("Brown"). Farrell prepared the will and Brown was an associate at Farrell's law firm. A self-authenticating affidavit was attached to the will, also signed by Farrell and Brown, and their signatures were notarized by Terrie L. McMahon, now Terrie McMahon Snow ("Snow"). The affidavit contained this language:
Dorothy A. Hood, being of lawful age, in the joint presence of the affiants, signed, published and declared the same to be her Last Will and Testament and that they, believing the said Dorothy A. Hood to be of sound and depositing mind and memory, at her request and in her presence, and in the presence of each other, subscribe their names hereto….
Dorothy had two prior wills, both of which divided Dorothy's estate equally between Stephen and Jeffrey. The revocation of "any and all wills and codicils" contained in the September 7, 2007 will disinherited Stephen, with the will stating such was because Stephen "was well provided for during my lifetime."
Stephen filed the underlying action to challenge the validity of the will. In his complaint, Stephen raised the following grounds for relief: 1) Dorothy lacked testamentary capacity to make the September 7, 2007 will; 2) The will was executed while Dorothy was subject to undue influence; 3) Stephen expected to receive an inheritance from Dorothy, which was interfered with by Jeffrey and Respondents; 4) Respondents engaged in a civil conspiracy to deprive Stephen of his inheritance; and, 5) Respondents converted estate assets to themselves. The first three of these grounds are at issue in this appeal.[3]
During the course of the litigation, both Stephen and Respondents filed motions for summary judgment.[4] The circuit court granted Respondents' motion for summary judgment, finding there was no genuine issue of material fact on all issues. As we believe the circuit court erred in granting summary judgment because there are genuine issues of material fact, we will set forth the basis of such factual questions.
By 2006, Dorothy's friends and family noted she was showing signs of dementia. William Burdette, Jr. ("Burdette") was a thirty-year employee of West Virginia Electric[5] who testified about a time when Dorothy came into West Virginia Electric in 2006 or 2007 to purchase lightbulbs and thereafter could not remember how to get home. David Hager ("Hager") [6] provided an affidavit stating that he witnessed Dorothy's mental health deteriorate beginning in 2004, following Marshall's death. He averred that by September 2007, Dorothy could only respond to questions with short replies, which was unusual for her. He further swore in his affidavit about an incident in which Dorothy forgot that Hager's mother had to have her legs amputated. Ann Justice ("Justice") signed an affidavit that stated Dorothy's mental state gradually declined after Marshall's death in 2004. In one incident, Justice and Dorothy were attending church in Huntington when, following the service, Dorothy asked Justice "if the service was about to begin, or if it had ended." Another witness, Taylor Hood (Stephen's son and Dorothy's grandson), testified that in 2006, Dorothy had someone else writing her checks and paying her bills. Additionally, Stephen testified that he visited Dorothy on either September 6 or 7, 2007, and he observed Dorothy looking through trash cans in the garage for Marshall's nail clippers. As she searched for them, she said it was because "[h]e needs his nail clippers.
He wants his nail clippers, and I threw them away," though Marshall had been deceased for some time.
Additionally, evidence from Dorothy's medical providers showed signs of onset of dementia as early as 2006. In a record dated October 12, 2006, from Cabell Huntington Hospital's Regional Pain Management Center, Dr. Ahmet Ozturk noted that "[t]he patient reports problems with falling asleep, waking tired in the morning, daytime fatigue, feeling sleepy during the day, and being forgetful of the little things." The chart from that visit also notes that Dorothy reported that both of her parents died of cancer, which statement was apparently not true.
On July 26, 2007, six weeks prior to the execution of Dorothy's will, she presented at the St. Mary's Medical Center Emergency Department with an "abrupt onset of neck pain." Dr. Chadwick Smith noted at that time that:
She cannot really tell me much more other than she has this left-sided neck pain. She does not know how long it lasted but she does know that it bothered her and then it radiated down into her left chest and actually down into the left hip. She believes that she may have some coronary artery disease. She is not certain. She knows that she does have a pacemaker. Just from my initial interview with this patient I believe that she does have some underlying dementia which is present. She repetitively ask [sic] me my name and the situation. It makes her history extremely limited. She cannot tell me what the pain feels like just that it hurts. She cannot tell me if it is worse with exertion or better with rest. She cannot really provide me with much further history other than that she did have this pain. She is still having some persistent left sided chest pain. The patient has a pacemaker in place making interpretation of her EKG difficult. She does have an underlying conduction delay secondary to the pacer. I do not have an old paced EKG for comparison. No further history is obtained secondary to her dementia.
(emphasis added).
Dr Kevin Yingling was Dorothy's primary care physician. He noted in his charts on November 10, 2006, and on March 9, 2007, that Dorothy was "neuro abnormal." In a note made in Dorothy's chart on June 6, 2007, Dr. Yingling's nurse noted that the nurse However, during a July 9, 2007, visit with Dr. Yingling, he found Dorothy to be in her usual state of health and mental competence. Five days after executing her will, on September 12, 2007, Dorothy was seen by Drs. Ataro and Elbash. They noted Dorothy was "alert" and "oriented to time, place, and person." Dr. Yingling saw Dorothy on September 20, 2007, and made similar notations in his records.[7] During this visit, Dr. Yingling and Dorothy discussed her current living arrangements. She indicated she ...
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