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VIRGINIA WILLS AND PROBATE

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 * Does a will create a life estate for a surviving spouse when it provides that
   she has the “right to reside in [the] home . . . for so long as she is
   physically and mentally able to do so.”?
 * Will a general waiver of claims provision in a separation agreement terminate
   an estranged spouse’s rights under intestate succession?
 * What is the effect of a presumption of undue influence on the burden of proof
   in a Virginia will contest case?
 * Virginia Wills and Probate


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DOES A WILL CREATE A LIFE ESTATE FOR A SURVIVING SPOUSE WHEN IT PROVIDES THAT
SHE HAS THE “RIGHT TO RESIDE IN [THE] HOME . . . FOR SO LONG AS SHE IS
PHYSICALLY AND MENTALLY ABLE TO DO SO.”?

No, not in the case of Sandra Flora Sneed Larsen v. Pamela Larsen Stack, et al.,
Record No: 190832 (2020) where the Supreme Court of Virginia upheld the trial
court’s decision that the will did not create a life estate, but did give the
surviving spouse the right to reside in the house and access the entire property
until she was no longer able to do so.

In Larsen, the two surviving children of the decedent filed a case for
declaratory relief against the surviving spouse, their stepmother.  The
decedent’s will gave the farm and house to his children, subject to his wife’s
“right to reside in [the] home . . . for so long as she is physically and
mentally able to do so.”   In addition, the surviving spouse was to receive
rental income from a cell phone tower on the property.  In the next section of
the will, the testator gave a life estate in other real estate to his surviving
spouse with a remainder interest to his children.

The circuit court judge held that the language of the will regarding the farm
was ambiguous, and therefore allowed parol evidence – testimony from the
attorney who drafted the will.  The attorney testified that it was the
testator’s intent to allow his wife to live on the property until her condition
deteriorated to the point that she would go into a nursing home, and that he did
not provide for any greater property rights in order to maintain her eligibility
for Medicaid (which will pay for unskilled care and nursing home costs while
Medicare will not.)  The judge held that the will did not create a life estate,
but did give the surviving spouse something less – the right to reside on the
property and access to all the property for so long as she was physically and
mentally able to do so. 

The surviving spouse appealed the adverse declaratory judgment to the Supreme
Court of Virginia with three assignments of error: 1. The circuit court judge
erred in deciding the will did not create a life estate; 2. The circuit court
judge erred in deciding the will gave the decendent’s children access to the
property while she was alive; and 3. The circuit court judge erred in allowing
parol evidence of the testator’s intent.

The Supreme Court of Virginia first recognized that the intent of the testator
controlled the interpretation of the will, that it was the ““polar star” to
guide and direct the interpretation of the will,” citing Feeney v. Feeney, 295
Va. 312, 318 (2018) quoting Roller v. Shaver, 178 Va. 467, 472 (1941).  Next the
Court recognized that the trial court must review the whole will and apply the
plain meaning rule in determining the testator’s intent.  The Court then noted
that  extrinsic or parol evidence could properly be allowed if the language of
the will is ambiguous, capable of more than one interpretation, citing Gaymon v.
Gaymon, 258 Va. 225, 230 (1990). 

In this case, the Court upheld the trial court’s decision that a life estate had
not been created because (1) the drafting attorney testified that that was not
the testator’s intent; (2) the testator had expressly given a life estate in
another parcel of property in the following section, demonstrating that this
grant must be something different; and (3) the grant of rents from the cell
phone tower only for as long as the surviving spouse resided in the house
contradicted the granting of a life estate in the farm property.  The Supreme
Court also upheld the trial court’s decision that the surviving spouse’s right
to possession was not exclusive, but rather concurrent with the rights of access
by the surviving children, as exclusive possession was not expressed.  The Court
recognized that the only limitation on the surviving children’s rights to access
was that the widow’s right required that she be free from molestation and
interference by them, citing its prior decision in White v. White, 183 Va. 239
(1944).

Finally, the Court noted that parol evidence was properly allowed by the trial
court judge in Larsen, as it was necessary to determine the scope of the
surviving spouse’s rights.  In a will case, a court may allow parol evidence to
determine the “quantum of interest which is to pass by will”, Parsons v.
Fitchett, 148 Va. 322, 329 (1927).  In particular, this will did not clearly
indicate whether the surviving spouse’s interest was limited to the dwelling
unit or if she had the right to use the entire property.  The drafting
attorney’s testimony was necessary to resolve the ambiguities in the will.

The Larsen case illustrates the importance of being very specific in the
provisions of a will with respect to the scope or quantum of rights granted if
the bequests or devices are not absolute or unconditional.

Posted on May 29, 2020May 30, 2020Leave a comment on Does a will create a life
estate for a surviving spouse when it provides that she has the “right to reside
in [the] home . . . for so long as she is physically and mentally able to do
so.”?


WILL A GENERAL WAIVER OF CLAIMS PROVISION IN A SEPARATION AGREEMENT TERMINATE AN
ESTRANGED SPOUSE’S RIGHTS UNDER INTESTATE SUCCESSION?

Virginia Code §64.2-308 provides that a spouse who willfully deserts and
abandons his or her spouse loses his or her statutory rights under intestate
succession, and rights to claim an elective share, or to claim exempt property,
the family allowance, or the homestead allowance.  By implication, an estranged
spouse who has not willfully deserted or abandoned his or her spouse may still
enjoy the legal rights of a surviving spouse in the estate of the deceased
spouse.  What about the rights of an estranged spouse who signs a written
separation agreement with the typical general waiver of claims found in
Virginia?

The Supreme Court of Washington held that such a waiver did terminate the
spouse’s rights in a case of first impression for that state, In the Matter of
the Estate of Michael Petelle, No: 97463-02, writ granted 451 P.3d 334 (2019)
affirming the published decision of its court of appeals.  While the State of
Washington, a community property state, differs from the Commonwealth of
Virginia, an equitable distribution state, in marital property rights, the
opinion may still provide persuasive authority in Virginia, as Washington
nevertheless allows couples to alter the 50-50 division of marital property by a
written separation agreement.

In contrast to Virginia’s course of descents in Virginia Code §64.2-200, the
State of Washington in its RCW 11.04.015, gives a surviving spouse all of the
net community estate, but only three quarters of the net separate estate if the
decedent has surviving parents (A surviving spouse’s share in Virginia is not
affected by surviving parents of the decedent).  The surviving estranged spouse
in the Petelle case attempted to realize this statutory inheritance by
qualifying as administrator and probating her deceased husband’s estate until
she was stopped by the decedent’s mother.  While separated, the spouses in
Petelle had signed a comprehensive, written separation agreement which included
a general waiver of claims, as is typical in Virginia.  Although the general
express waiver did not specifically mention rights under intestate succession,
the Supreme Court noted that the separation agreement included a provision that
the agreement was a full and final settlement of all marital and property
rights, as is also typical in Virginia separation agreements.  Further, the
court noted that the rights to intestate succession is a result of marital
status, which would be encompassed in the waiver of all marital and property
rights.  Finally, the court noted that the separation agreement included a
provision that the agreement would survive the death of either party and be
enforceable by heirs or legal representatives of the estate, also typical in
Virginia separation agreements.  The court did not accept the surviving spouse’s
arguments that she could only lose her rights through the disclaimer process or
that the alleged reconciliation of the parties restored her statutory rights. 
The court concluded by restating its prior decision that a general waiver was
sufficient to extinguish rights, without specifically listing each and every
right waived.

Posted on May 15, 2020May 15, 2020Leave a comment on Will a general waiver of
claims provision in a separation agreement terminate an estranged spouse’s
rights under intestate succession?


WHAT IS THE EFFECT OF A PRESUMPTION OF UNDUE INFLUENCE ON THE BURDEN OF PROOF IN
A VIRGINIA WILL CONTEST CASE?

In the case of Parson v. Miller, 296 Va. 509, 822 S.E.2d 169 (Va. 2018), the
Virginia Supreme Court reversed the trial court’s refusal to grant a motion to
strike the evidence and the judge’s decision that the evidence was sufficient to
support a jury verdict that the will was obtained by undue influence.

In Parson, a daughter sued her deceased father’s niece, individually and as
executor of his estate, to impeach a will that named the niece as the
beneficiary of the deceased father’s estate, on the grounds of undue influence
and lack of testamentary capacity.  The father was 80 years old at his death,
and had made a new will naming his niece just a week before his death.

At trial, a son of the decedent testified that his father had told him that he
intended to leave everything to his daughter, but never specifically mentioned
his will.  A friend of the daughter testified that she had visited the father
with the daughter and that the father had asked to daughter to live with him, as
he was giving her his home, then read aloud a portion of his will.  Another
friend of the daughter testified that she had visited the father in the hospital
in the month before his death, and that he was agitated by his niece’s
insistence that he sell his house to her, responding that he intended to leave
it to his daughter.  The niece admitted in her testimony that she had purchased
a will kit for the father.  She also admitted that she lived nearby and only
started visiting him in the two years before his death.  The will had been
witnessed by the niece’s sister and son-in-law.

After the plaintiff daughter rested her case, the judge denied the defendant
niece’s motion to strike the evidence with respect to undue influence, but
granted it with respect to lack of testamentary capacity.

The defendant niece presented her case.  Her son-in-law testified that he was
asked to sign the will by the father; that he was not made aware of the terms of
the will; and that the others present were all relatives or in-laws of the
niece. A friend of the decedent then testified that he advised the father to
have a will done.  That the father had complained that his daughter would not
come live with him, and that she would just sell the house if he gave it to her,
contrary to his wishes to keep it in the family.  He further testified that the
niece had taken care of the father during the last several months of his life. 
The niece’s brother testified that the father had expressed an interest to his
daughter in turning his home into a nursing home after his death, which his
daughter declined to accept, saying she lived too far away and did not have
time.  The daughter did not visit after that disagreement.  A social worker and
a nurse testified about the father’s mental capacity.  All of the niece’s
witnesses testified that the father was strong-willed and made his own decisions
about things.

The defendant niece testified that the father had requested that she buy a will
kit.  She further testified that she was not present when he prepared it and
signed it.  She also claimed that the father stated that if his daughter would
not live with him now, he would allow her to live in the house in the future.

The jury returned a verdict in favor of the daughter, and the niece made a
motion to set aside the verdict, which was denied by the judge.  The niece
appealed the judge’s denial of her motion to strike the undue influence count on
the grounds that the presumption of undue influence did not shift the burden of
persuasion to the defendant niece.

On appeal, the Supreme Court stated the standard of review, that it “will not
set aside a trial court’s judgment sustaining a jury verdict unless it is
‘plainly wrong or without evidence to support it’”, quoting Fruiterman v.
Granata, 276 Va. 629, 668 S.E.2d. 127 (Va. 2008) quoting Va. Code § 8.01-680).

The Court stated that a presumption of undue influence arises upon proof of
three factors: (1) the testator was old when he made the will; (2) he named a
beneficiary who stood in a relationship of confidence or dependence; and (3) he
had previously expressed a contrary intention as to the disposition of his
property.

The Court then recognized two different competing theories about the effect of
establishing a presumption, the Thayer theory or “bursting bubble theory” and
the Morgan Theory.  Under the bursting bubble theory, the presumption shifts the
burden of production to the other party, such that when that party introducing
countervailing evidence, the presumption “bursts”, and has no further effect on
the trial. In contrast, under the Morgan theory, both the burden of production
and the burden of persuastion shift to the other party once the presumption is
established. 

Virginia has not adopted a single rule on the effects of presumptions.  In this
case, the Court would continue to use the Thayer or “bursting bubble theory”
with respect to the presumption of undue influence.  Undue influence must be
established by clear and convincing and as with fraud, the ultimate burden is
upon the person who alleges it.  The Court further distinguished a mere
inference, which unlike a presumption, does not shift the burden of production. 
Not all influence is undue; to be sufficient it must cause the testator to have
the attitude of it is not his or her will, but it must be done.  If the
presumption has been rebutted, the jury should not receive an instruction on it.

In this case, the Court recognized that the daughter’s evidence was sufficient
to support a presumption of undue influence.  The presumption was rebutted by
the niece’s evidence concerning the father’s strong-willed character and his
actions.  There was no evidence supporting the idea that his volition was
overcome, even though the circumstances supported a presumption.  As the burden
of persuasion remained with the daughter, the judge should have granted the
niece’s motion to strike and the issue of undue influence should never have been
submitted to the jury.  The trial judge’s decision was reversed and the case
remanded.

Posted on April 29, 2020May 5, 2020Leave a comment on What is the effect of a
presumption of undue influence on the burden of proof in a Virginia will contest
case?


VIRGINIA WILLS AND PROBATE

A Virginia lawyer provides information on inheritance laws, intestate
succession, probate, trusts, wills, and the administration of estates and trusts
in Virginia.

Posted on April 27, 2020April 27, 2020Leave a comment on Virginia Wills and
Probate
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