By Stephen Taylor
The two most common legal theories used in will contests are lack of
testamentary capacity and undue influence. While the basic principles of
these two theories have long been established in Virginia, a recent
decision handed down by the Supreme Court of Virginia illustrates the
difficulty in satisfying the burden to prove lack of capacity and/or
undue influence by an opponent to the will.
In Weedon v. Weedon, No. 101901, 2012 Va. LEXIS 7 (Va. Jan.
13, 2012) [enhanced version available to lexis.com subscribers], four of the deceased testator's children challenged the
validity of her 2008 will, arguing that their mother lacked the mental
capacity to execute the will and that their sibling, the proponent and
beneficiary of the 2008 will, exerted undue influence on their mother's
execution of the will. The elderly testator, confined to the hospital,
executed a new will four days before she died, leaving all of her assets
to the beneficiary child to the exclusion of the remaining four
children. The beneficiary child was alleged to have taken control of her
mother's financial and medical affairs while gradually isolating her
mother from her siblings.
The trial court held that (1) the testator lacked the requisite
testamentary capacity at the time she executed the will, and (2) even if
the testator did have capacity, then the testator was subject to the
undue influence of the beneficiary child when she executed the 2008
In a decision handed down in mid January 2012, the Supreme Court of
Virginia reversed the trial court's decision and remanded the case for
further proceedings. On the issue of testamentary capacity, the Supreme
Court first held that an assessment of a testator's mental capacity by
the drafting attorney's legal assistant or paralegal can be afforded the
same weight as a similar assessment made by the attorney. The Supreme
Court then held that the crucial moment for determining the testator's
capacity is the time of execution, finding that the trial court erred in
placing more weight on the testimony of the will opponents' expert
witness and the testimony of the testator's other children, who were not
present when she executed the will, than it did on the testimony of the
witnesses, notary, and beneficiary child who were present when the will
Turning its attention to the allegation of undue influence, the
Supreme Court held that even when undue influence is presumptive (such
as when a fiduciary relationship exists between the testator and the
individual alleged to exert the undue influence), "[t]he burden of
showing undue influence rests upon whose who allege it, and it cannot be
based upon bare suggestion, innuendo, or suspicion." It has long been
established that in order to prevail on this type of claim, the undue
influence must not only be present, but it must also overcome the
testator's own free will (e.g., "it is not my will, but I must do it.").
In the present case, the Supreme Court held that the trial court
focused on the circumstantial evidence that raised the presumption of
undue influence while overlooking the ultimate inquiry: whether the
testator's own free will was overridden.
The Weedon case shows how difficult it can be to challenge a will on
the basis of mental incapacity and/or undue influence. Despite this
ruling, however, each case will continue to be decided on its own set of
specific facts and circumstances. If you suspect a loved one has been
subject to undue influence or lacked the capacity to execute estate
planning documents, then you should confer with an attorney to discuss
the specific factors of your case.
The attorneys at Oast & Hook can assist families with their
estate, financial, insurance, long-term care, veterans' benefits, and
special needs planning issues.
Stephen Taylor is an elder law attorney with Oast & Hook, and
he practices in the areas of estate planning, estate and trust
administration, business planning, and litigation. Mr. Taylor is
licensed to practice law in Virginia and North Carolina.
Oast and Hook has served Southeastern Virginia and North Carolina for more than 80 years. Visit their website at www.oasthook.com for more information.
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