Ayers v. Shaffer

Present: Kinser, C.J., and Lemons, Goodwyn, Millette, Mims,
and Powell, JJ., and Koontz, S.J.

SHARA AYERS, ET AL.
OPINION BY
v. Record No. 122043 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
September 12, 2013
TONI L. SHAFFER, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Sage B. Johnson, Judge

In this appeal, we consider whether the circuit court

erred in sustaining a demurrer to an amended complaint

alleging that certain inter vivos financial transfers, which

significantly reduced a decedent's estate, were the result of

undue influence exercised by persons in confidential

relationships with the decedent during her lifetime.

STANDARD OF REVIEW

Familiar principles of appellate review guide our

resolution of this appeal. This case was decided on demurrer.

"A demurrer admits the truth of all material facts properly

pleaded. Under this rule, the facts admitted are those

expressly alleged, those which fairly can be viewed as

impliedly alleged, and those which may be fairly and justly

inferred from the facts alleged." Rosillo v. Winters, 235 Va.

268, 270, 367 S.E.2d 717, 717 (1988); see also Runion v.

Helvestine, 256 Va. 1, 7, 501 S.E.2d 411, 415 (1998). "A

demurrer tests the legal sufficiency of facts alleged in the
pleadings, but not the strength of proof. Because the

decision whether to grant a demurrer is a question of law, we

review the circuit court's decision de novo." Kaltman v. All

Am. Pest Control, Inc., 281 Va. 483, 489, 706 S.E.2d 864, 867-

868 (2011) (citation omitted). "Additionally, when, as here,

a circuit court sustains a demurrer to an amended complaint

that does not incorporate or refer to any of the allegations

that were set forth in a prior complaint, 'we will consider

only the allegations contained in the amended pleading to

which the demurrer was sustained.'" 1 Lewis v. Kei, 281 Va.

715, 719, 708 S.E.2d 884, 888 (2011) (quoting Yuzefovsky v.

St. John's Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134,

136 (2001)).

PROCEDURAL BACKGROUND

The original complaint in this action was filed in the

Circuit Court of the City of Bristol on November 7, 2011, and

an amended complaint was filed by leave of court on February

27, 2012. We will consider the allegations in the amended

complaint under the standard of review cited above.

1
Although the amended complaint did not expressly
incorporate any of the allegations of the original complaint,
it did reference exhibits attached to the original complaint.
Accordingly, those exhibits, which were already a part of the
record, are properly considered part of the amended complaint
for purposes of resolving the demurrer. See Rule 3:4(b).

2
 When so viewed, the amended complaint established that

the plaintiffs, Shara Ayers and Ryan Riley, are the great

grandchildren of Elsie R. Smith ("Elsie") and legatees to one

half of her residuary estate under a will dated August 3,

2004. This will was admitted to probate following Elsie's

death on March 22, 2010. The defendants are Audrey Wingo

("Audrey"), Elsie's sister and legatee to the remaining half

of her residuary estate, Toni Lynn Shaffer ("Toni"), her

husband Bruce Shaffer ("Bruce"), and their son Michael T.

Shaffer ("Mike"). Elsie's will nominated Toni as executrix,

and she qualified as executrix of Elsie's estate on April 14,

2010.

Ayers and Riley acknowledge that Elsie had become

estranged from their mother, Elsie's only living grandchild

and nearest living lineal descendent, and that they had lived

with their mother in Colorado "for a number of years." During

this time, Elsie and her husband, Charles Smith ("Charles"),

lived on their farm in Washington County. In 2004, both Elsie

and Charles were in poor health and no longer able to care for

themselves and manage their property and affairs without

assistance. Beginning April 1, 2004, Toni and Bruce, who

lived nearby, began providing assistance to the Smiths.

Charles died on April 23, 2004. Elsie, who was then 80

years old and suffered from diabetes, dementia and other

3
medical problems, suffered a rapid decline in her mental and

physical health following Charles' death. The Shaffers

continued providing care to Elsie, assisting her with the

daily activities of living as well as managing her property

and affairs.

On May 13, 2004, Elsie went to the office of attorney

H.G. Peters where she executed a durable power of attorney

("DPOA") naming Toni as her agent and attorney-in-fact and

Bruce as alternate agent and attorney-in-fact. The amended

complaint expressly alleges that "at least [from] the time

when Toni Shaffer became [Elsie]'s agent under the DPOA, and

until her death, [Elsie] lacked the mental and physical

capacity . . . to seek and obtain independent advice on her

own; to fully understand the complexities and effects of most

financial transactions." However, the amended complaint

further alleges that this lack of capacity did not impair

Elsie's ability "to decide whom she wished her assets to pass

to upon her death, and to express those wishes in her Will."

On August 3, 2004, Elsie, Toni, and Bruce returned to

Peters' office where Elsie executed her last will and

testament. Article VI of the will references a "contract with

Toni Shaffer and her husband, Bruce Shaffer" which was

executed in Peters' office that day. The contract stated that

Toni and Bruce would provide "needed care" for Elsie for which

4
they would be paid $500 per week. Additionally, Toni and

Bruce were to receive $8000 for the assistance given to Elsie

and Charles since April 2004. The agreement further provided

that Toni and Bruce would "be paid the monies owed by [Elsie]

from [her] estate," rather than during her lifetime.

Likewise, the will directed "payment of any and all sums due

pursuant to [this] contractual agreement," but otherwise made

no bequest to Toni or Bruce. The amended complaint expressly

acknowledges that Toni and Bruce provided care under the

agreement over the next three years, during which time Elsie

became "increasingly disoriented, calling [Toni and Bruce]

several times daily, and at nights."

On October 29, 2007, Elsie began residing in an assisted

living facility in Bristol, Tennessee, where her daily needs

became the responsibility of the staff. In July 2008, she was

admitted to a local hospital and then moved to a nursing home,

where she received round-the-clock care from the staff.

During this time, under the authority of the DPOA, Toni sold

Elsie's home and the farm. Accordingly, the amended complaint

alleges that after October 2007 the need for any assistance

from the Shaffers in caring for Elsie and managing her

property and affairs was greatly diminished or eliminated

entirely.

5
 Following Elsie's death on March 22, 2010, an initial

accounting of her estate filed by Toni in her capacity as

executrix showed that at the time of her death Elsie had cash

assets in excess of $1,000,000. However, as a result of

certain inter vivos financial transactions which included

survivorship or pay on death provisions, the probate estate

was less than $600,000. The amended complaint alleges that

these inter vivos transactions occurred after Toni was made

Elsie's agent and attorney-in-fact under the DPOA, and were

the result of Elsie's "complete dependence upon, and justified

trust in Toni" and the "strong confidential relationship" that

existed between Elsie and Toni and Bruce, under which they

"owed [Elsie] the highest degree of fidelity."

The general background allegations of the amended

complaint conclude with the assertion that it "relates to

activities and conduct by Toni Shaffer, after being appointed

as agent for [Elsie] under the DPOA, and that of [Elsie]'s

sister, Audrey Wingo, from 2004 until shortly after [Elsie]'s

death in 2010." Other than to reference her relationship to

Elsie and identify her as a residuary legatee of Elsie's will,

no other allegations concerning Audrey are found in the

general allegations of the amended complaint.

The amended complaint then lists a series of "financial

transactions involving Toni Shaffer while serving as [Elsie]'s

6
agent under the durable power of attorney." Despite this

description, however, it is not alleged that any of the

transactions were accomplished using the authority of the

DPOA. These transactions may be summarized as follows:

• On May 21, 2004, Elsie signed a customer access agreement
for an account at Wachovia Bank. Sometime prior to March
2009, the account was redesignated as "Elsie R. Smith and
Toni Shaffer, POA." Following Elsie's death, the final
statement of the account showed only Elsie as the owner
and indicated that the balance of $83,467.89 was
withdrawn from the account by a cashier's check payable
to Audrey directly, rather than to Elsie's estate.
• On June 22, 2004, Elsie, accompanied by Toni and Audrey,
transferred the balance of an account at First Tennessee
Bank titled solely in her name into a certificate of
deposit of $80,500.00 titled jointly with Toni and Audrey
with right of survivorship. Toni and Audrey received the
proceeds from this account following Elsie's death.
• On November 23, 2004, Elsie, accompanied by Toni and
Audrey, transferred the balance of a certificate of
deposit at Highlands Union Bank titled solely in her name
into a certificate of deposit of $75,018.13 titled
jointly with Toni and Audrey with right of survivorship.
When the certificate matured in November 2008, Toni,
acting as a joint holder of the account, received a
cashier's check for $87,769.85, with which she opened a
certificate of deposit at Wachovia Bank in the name of
Elsie, herself, and Bruce and a pay on death designation
in favor of Audrey and Benjamin Shaffer ("Benjamin"), the
Shaffers' grandson. Following Elsie's death, Mike,
Benjamin's father, received half the proceeds of the
certificate as custodian for Benjamin, and Audrey
received the remainder.
• On September 7, 2007, Toni redeemed certificates of
deposit at TruPoint Bank and Wachovia Bank for $97,260.56
and $53,766.84 respectively and deposited these funds
into an account at Wachovia Securities titled jointly
with right of survivorship in Elsie's and her names.
Following Elsie's death, Toni withdrew the account
balance of $156,976.08 and deposited these funds into an

7
 account titled in her name only. This account was later
retitled in the Shaffers' names jointly.

The amended complaint sets out 11 counts which can be

summarized as follows: Counts 1, 2 and 3 allege breach of a

"duty as an agent on a joint bank account" by Audrey, Bruce

and Toni respectively and seek to recover funds for inclusion

in Elsie's estate. Counts 4, 5 and 6 seek to set aside all

transactions that directly or indirectly benefited Toni, Bruce

and Audrey respectively in that they were "procured by undue

influence" and to recover those funds for inclusion in Elsie's

estate. Counts 7 and 8 seek to remove Toni as executrix of

Elsie's estate and to assess damages against her for waste of

the estate's assets. Counts 9 and 11 are alleged to be

"against all defendants," but make no express allegations

against Mike, the Shaffers' son, and seek a declaratory

judgment concerning Elsie's testamentary intent and

establishing a constructive trust for any unjust enrichment of

the defendants. Count 10 seeks a declaratory judgment against

Toni and Bruce with respect to their contract for personal

services with the Smiths to determine the amount of

compensation, if any, they are due from the estate.

As relevant to this appeal, within the various counts the

amended complaint repeatedly asserts that Toni, Bruce and

Audrey each had a confidential relationship with Elsie and

8
that "[w]here one standing in a confidential relationship to

another person receives a benefit from that person without an

exchange of full and fair compensation, a presumption arises

that the benefit resulted from the exercise of undue

influence. This presumption is sufficient to satisfy

Plaintiffs' burden of establishing a prima facie case of undue

influence."

On March 19, 2012, the defendants jointly filed a

demurrer to the amended complaint. The defendants alleged

that the amended complaint as a whole fails to state any cause

of action because it asserts that Elsie had testamentary

capacity. They contended, therefore, that Elsie was likewise

competent to undertake the financial transactions in which she

personally participated. Moreover, they contended that since

Elsie personally participated in these transactions, Toni's

role as agent and attorney-in-fact are not relevant to

establishing whether she had a confidential relationship with

Elsie as to these transactions.

The defendants further contended that the amended

complaint fails to allege "facts, as opposed to legal

conclusions, sufficient to establish that the defendants

abused their confidential relationship with Elsie Smith."

This was so, they contended, because Ayers and Riley are

"rely[ing] upon an evidentiary presumption in order to . . .

9
circumvent their pleading requirements." Finally, the

defendants generally denied that the amended complaint

adequately states grounds for the declaratory relief sought,

for the establishment of a constructive trust, or for removing

Toni as executrix of the estate and charging her with waste.

As relevant to this appeal, Ayers and Riley responded to

the demurrer by asserting that Elsie's capacity to personally

participate in some of the financial transactions did not

negate the possibility that she engaged in those transactions

as a result of the undue influence of the defendants.

Moreover, they contended that it was not necessary that Toni

act directly in her capacity as Elsie's agent and attorney-in-

fact for the confidential relationship implied by that role to

give rise to an inference of undue influence, especially where

she benefited disproportionately from the transactions. Ayers

and Riley further responded that the facts alleged in the

amended complaint support the evidentiary presumption, that

the circuit court was required to accept these allegations as

true and, thus, also that the presumption would apply.

Similarly, they contended that the allegations of the

complaint as a whole support the claims for equitable relief

to restore a portion of Elsie's estate.

The circuit court conducted a hearing on the demurrer to

the amended complaint on July 25, 2012. The parties presented

10
arguments in accord with their positions stated above. At the

conclusion of the hearing, the court opined that the demurrer

would be sustained because the amended complaint was "devoid

of any allegation that [Toni] took any specific act under her

Durable Power of Attorney to include herself on any account

that [Elsie] had titled solely in her name." In the court's

view, the existence of the DPOA was irrelevant to whether any

action taken personally by Elsie was the result of undue

influence, because the confidential relationship implied by

the existence of a power of attorney was relevant only to

transactions accomplished by virtue of a party acting as an

attorney-in-fact.

In a final order entered August 21, 2012, the circuit

court found that

the Amended Complaint merely alleges that the
defendant, Toni Shaffer, transported and accompanied
[Elsie] when [Elsie] signed various documents
including her will, general power of attorney, and
various bank documents adding Ms. Shaffer and others
as joint owners of various accounts. Significantly,
the Amended Complaint fails to state facts that
allege that Toni Shaffer, while acting as an agent
under the power of attorney, arranged for [Elsie]'s
assets to pass at death to Toni Shaffer or the other
named defendants. To the contrary, the exhibits
attached to plaintiffs' Amended Complaint indicate
that the assets in question were retitled by [Elsie]
personally.
The plaintiffs argued that the fact that
[Elsie] executed a power of attorney naming Mrs.
Shaffer as an agent calls into question the validity
of any subsequent transfer from the principal to the
agent. The plaintiffs' assertion is not the law in

11
 Virginia. Additionally, plaintiffs continue to rely
upon the evidentiary presumption that where an agent
acts under a power of attorney to consummate a
transaction to the benefit of the agent, the act is
presumptively fraudulent. . . . [P]laintiffs'
reliance is misplaced inasmuch as there is no
allegation in the Amended Complaint that Mrs.
Shaffer acted under the power of attorney to
consummate any transaction to the benefit of the
agent.

The circuit court further found that "the plaintiffs'

remaining pleadings which attempt to set forth various

theories of recovery against the defendants fail to allege

facts sufficient to state a cause of action." The court

neither addressed nor made any express ruling with regard to

the defendants' argument that the amended complaint fails to

adequately plead that Elsie could have been subject to undue

influence by Toni or others because it also alleges that she

had testamentary capacity to make her will. Ayers and Riley

filed written exceptions to the court's judgment, and this

appeal followed.

DISCUSSION

At the outset, we will clarify what aspects of the

amended complaint are before us in this appeal. In their

assignments of error addressing the sustaining of the

demurrer, Ayers and Riley expressly identify Counts 1, 2, 3,

4, 5 and 6 of the amended complaint as having been erroneously

dismissed by the circuit court. As the court's order

12
sustained the demurrer as to all 11 counts, we hold that Ayers

and Riley have abandoned Counts 7, 8, 9, 10 and 11 by failing

to make these claims the subject of an assignment of error.

WBM, LLC v. Wildwoods Holding Corp., 270 Va. 156, 164, 613

S.E.2d 402, 407 (2005). Because only Counts 9 and 11 assigned

liability to "all defendants" and no other count predicated

any liability against the Shaffers' son Mike, we further hold

that the court's judgment is final as to him.

We clearly and concisely stated the law of undue

influence in the formation of contracts in Parfitt v. Parfitt,

277 Va. 333, 672 S.E.2d 827 (2009). What we said there bears

repeating here.

A court of equity will not set aside a contract
because it is "rash, improvident or [a] hard
bargain" but equity will act if the circumstances
raise the inference that the contract was the result
of imposition, deception, or undue influence. To
set aside a deed or contract on the basis of undue
influence requires a showing that the free agency of
the contracting party has been destroyed. Because
undue influence is a species of fraud, the person
seeking to set aside the contract must prove undue
influence by clear and convincing evidence.
Direct proof of undue influence is often
difficult to produce. In the seminal case of
Fishburne v. Ferguson, 84 Va. 87, 111, 4 S.E. 575,
582 (1887), however this Court identified two
situations which we considered sufficient to show
that a contracting party's free agency was
destroyed, and, once established, shift the burden
of production to the proponent of the contract. The
first involved the mental state of the contracting
party and the amount of consideration:

13
 [W]here great weakness of mind concurs
with gross inadequacy of consideration, or
circumstances of suspicion, the
transaction will be presumed to have been
brought about by undue influence.
. . . .
The second instance Fishburne identified arises when
a confidential relationship exists between the
grantor and proponent of the instrument:
[W]here one person stands in a
relationship of special confidence towards
another, so as to acquire an habitual
influence over him, he cannot accept from
such person a personal benefit without
exposing himself to the risk, in a degree
proportioned to the nature of their
connection, of having it set aside as
unduly obtained.

277 Va. at 339-40, 672 S.E.2d at 829 (quoting Bailey v.

Turnbow, 273 Va. 262, 267, 639 S.E.2d 291, 293 (2007)).

Thus, "the presumption of undue influence arises and the

burden of going forward with the evidence shifts [to the

defendant] when weakness of mind and grossly inadequate

consideration or suspicious circumstances are shown or when a

confidential relationship is established." Friendly Ice Cream

Corp. v. Beckner, 268 Va. 23, 33, 597 S.E.2d 34, 39 (2004)

(emphases in original); accord Parfitt, 277 Va. at 340, 672

S.E.2d at 829. Such a confidential relationship is "not

confined to any specific association of the parties; it is one

wherein a party is bound to act for the benefit of another,

and can take no advantage to himself. It appears when the

circumstances make it certain the parties do not deal on equal

14
terms, but, on the one side, there is an overmastering

influence, or, on the other, weakness, dependence, or trust,

justifiably reposed; in both an unfair advantage is possible."

Friendly Ice Cream Corp., 268 Va. at 34, 597 S.E.2d at 39-40

(internal citation omitted); accord Parfitt, 277 Va. at 341,

672 S.E.2d at 830.

We have further explained that "[t]rust alone, however,

is not sufficient. We trust most men with whom we deal.

There must be something reciprocal in the relationship before

the rule can be invoked. Before liability can be fastened

upon one there must have been something in the course of

dealings for which he was in part responsible that induced

another to lean upon him, and from which it can be inferred

that the ordinary right to contract had been surrendered."

Friendly Ice Cream Corp., 268 Va. at 34, 597 S.E.2d at 40.

"We have identified several particular classes of

relationships that may give rise to a presumption of undue

influence. Among them . . . is when one person is an agent

for the other." Parfitt, 277 Va. at 341, 672 S.E.2d at 830

(citing Bailey, 273 Va. at 268, 639 S.E.2d at 293).

Undeniably, one such relationship is that between a principal

and a person authorized to act as her agent and attorney-in-

fact. Grubb v. Grubb, 272 Va. 45, 53, 630 S.E.2d 746, 751

(2006). Importantly, in such cases, the presumption of undue

15
influence will "arise[] independently of any evidence of

actual fraud, or of any limitations of age or capacity in the

other party to the confidential relationship, and is intended

to protect the other party from the influence naturally

present in such a confidential relationship." Id. at 54, 630

S.E.2d at 751 (emphasis added).

A confidential relationship "springs from any fiduciary

relationship, and when such relationship is found to exist,

any transaction to the benefit of the dominant party and to

the detriment of the other is presumptively fraudulent."

Nicholson v. Shockey, 192 Va. 270, 278, 64 S.E.2d 813, 817.

(1951)(emphasis added). Thus, whenever a fiduciary

relationship exists between parties, the existence of one or

more transactions which benefit the party who owes a fiduciary

duty to the other shifts the burden of proving the bona fides

of the transaction to the party owing the duty. Id. at 277,

64 S.E.2d at 817. It is not necessary that the transaction be

accomplished directly as a result of the fiduciary

relationship, but rather, it is the fact that "a confidential

relationship existed between the parties at the time of the

transaction" that gives rise to the presumption and the

shifting of the burden of going forward with the evidence.

Diehl v. Butts, 255 Va. 482, 489, 499 S.E.2d 833, 838 (1998);

Friendly Ice Cream Corp., 268 Va. at 33, 597 S.E.2d at 39.

16
 From this summary of the law, it is clear that to survive

a demurrer, a complaint seeking to set aside a contract or

other transaction favorable to a defendant or her interests

because of undue influence by the defendant must allege either

that because of great weakness of mind of the other party the

defendant obtained the bargain for grossly inadequate

consideration or under some other circumstance of suspicion,

or alternately that a confidential relationship existed

between the parties at the time of a transaction beneficial to

the defendant, even in the absence of other suspicious

circumstances. Both allegations will support a finding of

undue influence resulting in a fraudulent transaction, and may

be pled independently or in the alternative.

Because the two circumstances that will suffice to allege

undue influence are not interdependent, the capacity, or lack

thereof, of the party allegedly defrauded by the defendant to

conduct her own business is not relevant to establishing a

presumption of undue influence based upon the existence of a

confidential relationship. Likewise, the absence of an

allegation of a confidential relationship alone would not

defeat a claim that the undue influence arose from the

defendant taking advantage of the other party's diminished

capacity. In short, while it may frequently be the case that

a claim of undue influence may be supported by allegations

17
that the defendant both overbore the will of the other party

through weakness of mind and also took advantage of a

confidential relationship, in considering a demurrer to such

claims the trial court must evaluate the sufficiency of each

theory independently.

Although the amended complaint in this case contains

allegations that the defendants exercised undue influence over

Elsie both through her diminished capacity and as a result of

confidential relationships, it is clear that the circuit

court's determination to grant the demurrer was premised only

on its determination that there was no confidential

relationship between Elsie and Toni. The court concluded that

because the transactions were conducted by Elsie personally,

or by Toni as a joint account holder, no confidential

relationship between Elsie and Toni arose by virtue of the

DPOA, which in the court's view precluded any presumption of

undue influence. Without elaborating further, the court

summarily concluded that the amended complaint also failed to

allege facts sufficient to find that a confidential

relationship existed between Elsie and either Bruce or Audrey. 2

2
The circuit court made no express ruling on whether the
amended complaint adequately pled facts to support a finding
that one or more of the defendants exercised undue influence
over Elsie because of her weakness of mind in obtaining a
benefit for inadequate consideration or under other suspicious
circumstances, and neither party has addressed that issue in

18
 Ayres' and Riley's first assignment of error challenges

the circuit court's ruling that there was no confidential

relationship between Elsie and Toni because the transactions

at issue did not require Toni to exercise her powers under the

DPOA. Unquestionably, the amended complaint pleads that Toni

was in a position of trust and exercised habitual influence

over Elsie, as evidenced by Elsie having entrusted the

management of her property and affairs to Toni though the

DPOA, such that a confidential relationship existed between

Elsie and Toni. Contrary to the court's ruling and the

position urged by the defendants below and in this appeal, it

was not necessary under the allegations of the amended

complaint for Toni to have exercised her authority under the

DPOA to accomplish the transactions that benefited her or

others close to her for the presumption of undue influence to

apply. Accordingly, we hold that the circuit court erred in

ruling that no confidential relationship could arise between

Elsie and Toni solely because Toni may not have exercised her

powers under the DPOA with respect to the challenged

transactions.

this appeal. Accordingly, we express no opinion on whether
the amended complaint would have supported a cause of action
based on the alternate method of proving undue influence.

19
 We now consider the issue raised by Ayers and Riley in

their second assignment of error challenging the sustaining of

the demurrer as to Counts 1, 2 and 3. In each of these

counts, the amended complaint alleges that a confidential

relationship existed between Elsie and Audrey, Toni, and Bruce

respectively because they were each parties to a joint account

with Elsie for which she provided all the assets.

Code § 6.2-619(A) provides that "[p]arties to a joint

account in a financial institution occupy the relation of

principal and agent as to each other, with each standing as a

principal in regard to his ownership interest in the joint

account and as agent in regard to the ownership interest of

the other party." In Parfitt we explained that where, as in

this case, a joint account is established between two parties

under which all the assets are contributed by one party, the

second party becomes "an agent with regard to the entire

account. By statute, a confidential relationship was

established creating a fiduciary duty [and] a presumption that

the self-dealing transactions were unduly obtained." 277 Va.

at 342, 672 S.E.2d at 830 (internal citations and quotation

marks omitted). Under such circumstances, it need not be

alleged or proven that the defendant procured the creation of

the joint account by undue influence. Rather, the existence

of the account itself imposes a fiduciary duty on the

20
defendant and with regard to a subsequent transaction creates

the presumption of undue influence which shifts to the

defendant the burden of proving the bona fides of the

transaction. Id.; Nicholson, 192 Va. at 277, 64 S.E.2d at

817.

Because the amended complaint alleges that Audrey, Toni,

and Bruce were each made co-owners of one or more accounts

with Elsie for which Elsie provided all the funds, under Code

§ 6.2-619(A) a confidential relationship existed between each

of the three and Elise as a matter of law with respect to

those accounts, and the burden would fall upon each of them to

rebut the presumption that the transactions were the result of

undue influence. 3 Accordingly, we hold that the circuit court

erred in sustaining the demurrer as to Counts 1, 2 and 3.

In their third assignment of error, Ayers and Riley

challenge the circuit court's sustaining the demurrer as to

3
Because this case was decided on a demurrer, we are not
here concerned with what quantum of evidence the defendants
would need to present to rebut the presumption of fraud
arising from the statutorily-imposed confidential relationship
between joint owners of an account. Indeed, it is self-
evident that such evidence will be case specific and, thus,
should be decided by a trier-of-fact on evidence adduced at
trial. It is also self-evident, however, that these
transactions clearly reduced Elsie's estate, that neither Toni
nor Bruce are legatees under Elsie's will, and that, as she is
a residuary legatee under the will, Audrey's share of the
estate could be increased if funds were to be recovered for
the estate as a result of this litigation.

21
Counts 4, 5 and 6, which respectively asserted that Toni,

Bruce and Audrey each had a confidential relationship with

Elsie apart from that implied by the creation of the joint

accounts. We have already determined that the court erred in

finding that no confidential relationship arose between Toni

and Elsie because of the DPOA. Moreover, even without the

existence of the DPOA, the amended complaint contains

allegations that would support a finding that a confidential

relationship developed between Elsie and Toni. Specifically,

it is alleged that Elsie was "dependent on Toni . . . for both

physical and mental/intellectual assistance" calling upon her

both day and night. Likewise, in Count 5, the complaint

alleges that "[e]ven without the confidential relationship

arising . . . from the multi-owner bank account, a

confidential relationship existed between [Elsie] and . . .

Bruce . . . because of the aid Mr. and Mrs. Smith needed and

requested" from him.

A confidential relationship will not necessarily arise in

every case where a person requests or receives regular aid

from another. Nonetheless, when the amended complaint is

viewed as a whole, it is clear that Elsie was alleged to have

relied almost exclusively on Toni and Bruce to maintain her

property and for most of her daily needs and activities until

October 2007, and a reasonable inference can be made that

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Elsie was dependent on Toni and Bruce to such an extent that a

confidential relationship existed between them. Given the

standard of review applicable to a demurrer, we hold that the

circuit court erred in sustaining the demurrer as to Counts 4

and 5.

With respect to Audrey, the amended complaint alleges in

Count 6 that a confidential relationship between her and Elsie

was demonstrated by the fact that Audrey "collaborated with

Toni Shaffer in the handling of [Elsie]'s financial affairs,

and especially in the process of persuading [Elsie] to sign

documents to accomplish many of the . . . transactions which

Toni Shaffer proposed, advised, or persuaded [Elsie] to

participate in," and that when Elsie was accompanied by Audrey

to the banks to conduct these transactions, "[s]he was

completely under the influence of, and dependent upon Toni

Shaffer and/or her sister, Audrey Wingo. This was especially

true in regard to the management of her financial affairs."

Additionally, there are allegations that the familial

relationship between Elsie and Audrey was of a confidential

nature "especially after certain events caused [Elsie] to

distrust her granddaughter (Plaintiffs' mother)."

While these allegations are less specific than those

concerning Toni and Bruce, they nonetheless constitute facts

and reasonable inferences which, taken as true, give rise to

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the existence of a confidential relationship and the

consequent presumption of undue influence upon Elsie in those

transactions that benefited Audrey. Accordingly, we hold that

the circuit court erred in sustaining the demurrer to the

amended complaint with respect to Count 6. 4

CONCLUSION

For these reasons, we will affirm the judgment of the

circuit court sustaining the demurrer to the amended complaint

as to Counts 7, 8, 9, 10 and 11, and the dismissal of Michael

T. Shaffer as a defendant. We will reverse the judgment of

the circuit court sustaining the demurrer to the amended

complaint as to Counts 1, 2, 3, 4, 5 and 6, and remand the

case to the circuit court for further proceedings consistent

with the views expressed in this opinion.

4
We will briefly address an issue raised by Ayers' and
Riley's fourth assignment of error. As framed, this
assignment of error asserts that the circuit court erred in
determining that Toni was entitled to reimbursement of her
costs in defending the suit as executrix of the estate. Ayers
and Riley contend that this was error because the suit was
filed against Toni only in her personal capacity. While the
court stated from the bench that it would allow reimbursement
of costs incurred by Toni on behalf of the estate, neither the
final order nor any other order entered by the court
memorialized an award of costs and, thus, there is no ruling
on this issue to review. However, because we will remand the
case for further proceedings, the court may revisit the
question of whether Toni is entitled to reimbursement of any
costs of this litigation if they were incurred in her capacity
as executrix.

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 Affirmed in part,
reversed in part,
and remanded.

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