Weedon v. Weedon

• Decision Date: 13 January 2012
• Docket Number: Record No. 101901.
• Citation: 283 Va. 241,720 S.E.2d 552
• Parties: Mary Ann WEEDON, individually and as executor of the Estate of Dorothy Rose Weedon v. Larry S. WEEDON, et al.
• Court: Virginia Supreme Court

283 Va. 241
720 S.E.2d 552

Mary Ann WEEDON, individually and as executor of the Estate of Dorothy Rose Weedon
v.
Larry S. WEEDON, et al.

Record No. 101901.

Supreme Court of Virginia.

Jan. 13, 2012.

[720 S.E.2d 553]

James P. Cox, III (MichieHamlett, on briefs), Charlottesville, for appellant.

Shelley R. Collette (Pirsch & Associates, on brief), Alexandria, for appellees.

Present: All the Justices.

[720 S.E.2d 554]

OPINION BY Justice CLEO E. POWELL.

[283 Va. 245] 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 [283 Va. 246] 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.

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 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 [283 Va. 247] 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.

[720 S.E.2d 555]

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. 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 [283 Va. 248] 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.

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 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.”

[720 S.E.2d 556]

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.

[283 Va. 249] 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, 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...