Parish v. Parish

PRESENT: Koontz, Kinser, Lemons, and Mims, JJ., and Lacy and
Russell, S.JJ.

DAVID M. A. PARISH,
ADMINISTRATOR OF THE ESTATE
OF EUGENE NEAL PARISH

v. Record No. 092279 OPINION BY
JUSTICE WILLIAM C. MIMS
DIANE E. PARISH, ET AL. January 13, 2011

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Norman A. Thomas, Judge

In this appeal of a will contest, we consider whether the

circuit court properly found that the decedent, an “incompetent”

person with appointed conservators, had testamentary capacity,

and whether the circuit court properly held there was no

presumption of undue influence when a major beneficiary of the

will also was the decedent’s conservator and acted as the

decedent’s translator during the drafting of the will.

BACKGROUND

The decedent, Eugene Neal Parish (“Eugene”), suffered a

head and spinal cord injury in 1982 due to being struck in the

head with a metal pipe while at a bar. The injury left him

paralyzed in his legs and right arm. Eugene sued the bar and

the person who attacked him and recovered $3.5 million. At the

time of his injury, Eugene’s only child, David M. Parish

(“David”), was eleven months old.

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 In 1983, Eugene was declared incompetent in Florida due to

encephalopathy. 1 His wife was appointed as guardian. For the

court to make such an appointment, Eugene had to be shown

“incapable of caring for himself or managing his property or

. . . likely to dissipate or lose his property or inflict harm

on himself or others.” Former Fla. Stat. § 744.331 (as in

effect prior to amendment by 1989 Fla. Laws ch. 89-96, § 35). 2

Later, Eugene’s mother assumed the duties as his guardian.

In 1989, Eugene moved to Tennessee and resided at a nursing

facility near Memphis. David Wayne Parish (“David Wayne”),

Eugene’s brother, lived approximately 40 to 50 miles from

Eugene’s nursing facility. Diane E. Parish (“Diane”) and David

Wayne were married in 1998. Eugene’s mother, who had acted as

his conservator, remained in Florida. She agreed to transfer

the conservatorship to David Wayne and Diane in Tennessee.

1
Encephalopathy is “[g]eneralized brain dysfunction marked
by varying degrees of impairment of speech, cognition,
orientation, and arousal. In mild instances, brain dysfunction
may be evident only during specialized neuropsychiatric testing;
in severe instances, . . . the patient may be unresponsive even
to unpleasant stimuli.” Taber’s Cyclopedic Medical Dictionary
761 (21st ed. 2009).
2
The order of the Florida court cites former Fla. Stat.
§ 744.31(7), the provisions of which were repealed in 1974 and
subsequently incorporated into the version of Fla. Stat.
§ 744.331 in effect in 1983. See 1974 Fla. Laws ch. 74-106,
§§ 1, 3 (repealing former Fla. Stat. § 744.31 and enacting
former Fla. Stat. § 744.310, a predecessor of current Fla. Stat.
§ 744.331), and 1975 Fla. Laws ch. 75-222, §§ 9, 26 (enacting
Former Fla. Stat. § 744.3101, a predecessor of current Fla.
Stat. § 744.331).
2
 In 2000, David Wayne and Diane petitioned to be appointed

as Eugene’s co-conservators in Tennessee. They described the

reason for the appointment as Eugene’s encephalopathy.

Tennessee law required that David Wayne and Diane show that

Eugene was a “[d]isabled person,” which “means any person

eighteen (18) years of age or older determined by the court to

be in need of partial or full supervision, protection and

assistance by reason of mental illness, physical illness or

injury, developmental disability or other mental or physical

incapacity.” Tenn. Code Ann. § 34-1-101(7). The Tennessee

court granted the petition, and David Wayne and Diane became

Eugene’s conservators.

In the fall of 2002, David Wayne assisted Eugene in

preparing a Last Will and Testament (the “will”). David Wayne

testified at trial that Eugene had informed him “out of the

blue” that he wanted a will. During Eugene’s meeting with the

paralegal who drafted the will, David Wayne acted as a

translator because Eugene, who spoke through a voice box due to

a tracheotomy, was difficult to understand. David Wayne was

present in the room with the witnesses and the notary when the

will was executed and witnessed on October 2, 2002.

In the will, Eugene bequeathed 25% of his estate to David

Wayne, 25% to Diane, 25% to David, and 25% to other family

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members. 3 Eugene’s will appointed David Wayne as executor and

Diane as substitute executor. Neither David Wayne nor Diane

informed David that Eugene had executed a will.

In 2003, David Wayne and Diane executed a statement of

fiduciary in the probate court of Tennessee “to demonstrate to

the court the need, or lack of need, for the continuation of the

fiduciary’s services.” The statement averred that Eugene

continued to need conservators because his “condition remains

[the] same – encephalopathy.”

In 2004 David Wayne and Diane requested that David and his

wife Jessika Parish (“Jessika”) take over as conservators and

guardians of Eugene. David and Jessika, who lived in Virginia

Beach, petitioned the local circuit court in Virginia to

adjudicate Eugene incompetent and appoint them as guardians and

conservators. The circuit court appointed a guardian ad litem

(“GAL”), who reported that Eugene required a guardian and

conservator.

Specifically, the GAL reported that Eugene “had difficulty

speaking but was communicative and obviously could understand

your guardian ad litem’s questions and was able to respond.” In

response to one of the GAL’s questions, Eugene “indicated that

he was aware of the guardian/conservator proceeding, and even

3
In the absence of a will, Eugene’s entire estate would
pass to his son David under Virginia’s law of intestacy. Code

4
pointed out that his son’s name was incorrect in the original

Petition.” The GAL further stated that Eugene’s “understanding

of his finances, however, seemed to be somewhat impaired in that

he indicated that he presently had $3.5 million in the bank,

obviously not recognizing the fact that his funds have been

expended over the last twenty years in caring for him.”

The Virginia circuit court granted the petition. The 2004

order appointing a temporary conservator found that Eugene “is

incapacitated to such an extent that he is unable to care for

himself, make medical decisions, manage his estate or understand

his debts as they come due.”

Eugene died in 2006. David qualified as his administrator.

Diane then petitioned the circuit court to have David removed as

administrator and herself appointed as executor pursuant to

Eugene’s will. 4 David filed a counterclaim to impeach the will.

David claimed that Eugene lacked testamentary capacity to

execute a will due to encephalopathy. He further claimed that

David Wayne and Diane subjected Eugene to undue influence. At

trial, the court found that Diane had proved by clear and

convincing evidence that Eugene had testamentary capacity, and

that Eugene was not subjected to undue influence.

§ 64.1-1.
4
Diane averred that David Wayne had declined to serve as
executor.
5
 David assigns error to the circuit court’s judgment as

follows:

(1) The trial court erred in holding that the decedent
had testamentary capacity to execute his Last Will and
Testament because when a person is adjudicated mentally
incompetent, it is prima facie evidence of their
testamentary incapacity, and in order to overcome a
presumption of testamentary incapacity, the burden is on
the proponent of the will to show by clear and
convincing evidence that testamentary capacity existed
at the time the will was drawn and executed, which
petitioner failed to do.

(2) The trial court erred in holding that the decedent
was not subject to undue influence because a presumption
of fraud was created when the conservators, during their
time of service to decedent, assisted decedent in the
execution of his will and were made major beneficiaries
in that will, and petitioner failed to overcome that
presumption.

DISCUSSION

A. EFFECT OF ADJUDICATIONS OF INCOMPETENCE

Relying on Western State Hospital v. Wininger, 196 Va. 300,

83 S.E.2d 446 (1954), David assigns error to the circuit court’s

ruling that Eugene’s adjudications of incompetence did not

invoke a presumption that he lacked capacity. In Western State,

we required clear and convincing proof of capacity to overcome a

presumption of insanity when the testator previously was

adjudicated insane. Id. at 311-12, 83 S.E.2d at 452-53.

However, we previously have held that “the mere fact that

one is under a guardianship does not deprive him of the power to

make a will.” Gilmer v. Brown, 186 Va. 630, 637, 44 S.E.2d 16,

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19 (1947). See also Gibbs v. Gibbs, 239 Va. 197, 202, 387

S.E.2d 499, 502 (1990) (“the appointment of a guardian cannot be

regarded as prima facie evidence of mental incapacity”).

In Gilmer, we explained:

Mental weakness is not inconsistent with
testamentary capacity. A less degree of capacity
is requisite for the execution of a will than for
the execution of contracts and the transaction of
ordinary business. One may be capable of making a
will yet incapable of disposing of his property by
contract or of managing his estate. Mental
strength to compete with an antagonist and
understanding to protect his own interest are
essential in the transaction of ordinary business,
while it is sufficient for the making of a will
that the testator understands the business in
which he is engaged, his property, the natural
objects of his bounty, and the disposition he
desires to make of his property. The condition of
being unable, by reason of weakness of mind, to
manage and care for an estate, is not inconsistent
with capacity to make a will.

186 Va. at 637, 44 S.E.2d at 19 (internal citations and

quotations omitted). In Thomason v. Carlton, 221 Va. 845, 276

S.E.2d 171 (1981), we revisited this issue:

Neither sickness nor impaired intellect is
sufficient, standing alone, to render a will
invalid. If at the time of its execution the
testatrix was capable of recollecting her
property, the natural objects of her bounty and
their claims upon her, knew the business about
which she was engaged and how she wished to
dispose of her property, that is sufficient.

Id. at 852, 276 S.E.2d at 175 (internal quotation marks and

citations omitted).

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 The mere fact that one is under a conservatorship is not an

adjudication of insanity and does not create a presumption of

incapacity. The conservator statutes at issue here are

instructive. Florida law required that Eugene be shown

“incapable of caring for himself or managing his property or

. . . likely to dissipate or lose his property or inflict harm

on himself or others.” Former Fla. Stat. § 744.331 (as in

effect prior to amendment by 1989 Fla. Laws ch. 89-96, § 35).

Similarly, Tennessee law required a showing that Eugene was “in

need of partial or full supervision, protection and assistance

by reason of mental illness, physical illness or injury,

developmental disability or other mental or physical

incapacity.” Tenn. Code Ann. § 34-1-101(7). Virginia’s statute

requires showing that the respondent is “incapable of receiving

and evaluating information effectively . . . to such an extent

that the individual lacks the capacity to . . . manage property

or financial affairs or provide for his support . . . without

the assistance or protection of a conservator.” Code § 37.2-

1000.

None of these statutes required a specific factual finding

that Eugene was incompetent to such an extent that he could not

execute a will under the standard we articulated in Gilmer and

Thomason. Accordingly, the circuit court correctly ruled that

Eugene’s adjudications of incompetence due to encephalopathy and

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the attendant appointments of conservators did not create a

presumption of incapacity.

B. CAPACITY

In the absence of a presumption of incapacity, “[t]he

proponent of the will bears the burden of proving the existence

of testamentary capacity by a preponderance of evidence and

retains that burden throughout the proceeding.” Gibbs, 239 Va.

at 199, 387 S.E.2d at 500. 5 In Gibbs, we further explained that

the proponent of the will is entitled to a
presumption that testamentary capacity existed by
proving compliance with all statutory requirements
for the valid execution of the will. Once the
presumption exists, the contestant then bears the
burden of going forward with evidence to overcome
this presumption, although the burden of
persuasion remains with the proponent.

Id. at 200, 387 S.E.2d at 501. To overcome the presumption of

capacity, we do not require clear and convincing proof; rather

“the contestants need only go forward with evidence sufficient

to rebut the presumption.” Id. at 201, 387 S.E.2d at 501.

David does not dispute that the will was duly executed

according to Tennessee law; consequently the presumption of

5
Though the will was executed in Tennessee, we apply
Virginia law to determine testamentary capacity. Poole v.
Perkins, 126 Va. 331, 336, 101 S.E. 240, 242 (1919) (recognizing
exception to Virginia’s lex loci rule for issue of capacity).
See also Rochester v. Rochester Corp., 316 F. Supp. 139, 140
(E.D. Va. 1970), rev’d on other grounds, 450 F.2d 118 (4th Cir.
1971); Restatement (Second) of Conflicts §§ 239(d), 244(h)
(1971).
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testamentary capacity applies and the burden of producing

evidence shifted to David, the contestant of the will.

David testified that Eugene mistook him for David Wayne

during a visit in December 2002. Eugene told David that he had

a sister, but “[i]t was one of those things where he would send

29 cents a day to like Somalia or something like that. . . . He

thought he had adopted a kid.” Eugene constantly forgot things,

and had short-term memory problems. They had discussions about

a trust fund, when actually there was no such trust.

Jessika also testified that during the December 2002 visit

Eugene mistook David for David Wayne. David had to explain

“that he was little David all grown up.” She described Eugene

as “not all there.” She described his difficulty comprehending

the value of money: “[A]t Christmas time, when he was in the

nursing home, he wanted to buy every employee at the nursing

home either a fur coat or car, and almost couldn’t be talked

down from the idea.”

David also presented the expert testimony of Dr. Eric

Goldberg, a board certified neurologist who treated Eugene on

three occasions from November 2004 through June 2005. Dr.

Goldberg testified that the condition of a person with a

traumatic brain injury, such as that suffered by Eugene, is

“static,” becoming neither better nor worse over time. He

testified that Eugene “could follow a two-part command,” that he

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“was not oriented to person, place or time,” and that he had “no

short term-memory.” In Dr. Goldberg’s opinion, Eugene was not

able to understand and know the value of his estate or to

remember all of his family members. He concluded that Eugene

easily could be influenced and was not competent to execute a

will.

We will assume without deciding that the testimony of

David, Jessika, and Dr. Goldberg was sufficient to overcome the

presumption of capacity. Therefore, the burden to produce

evidence of capacity shifted back to David Wayne, the proponent

of the will. Gibbs, 239 Va. at 200, 387 S.E.2d at 501.

“[I]t is the time of execution of the will that is the

critical time for determining testamentary capacity.” Thomason,

221 Va. at 853, 276 S.E.2d at 175. “[T]he testimony of those

present at the factum – when the will is executed – is entitled

to the greatest consideration.” Id. “[I]n determining the

mental capacity of a testator, great weight is to be attached to

the testimony of the draftsman of the will, of the attesting

witnesses, and of attending physicians.” Hall v. Hall, 181 Va.

67, 76, 23 S.E.2d 810, 814 (1943).

Leonard Kyles was the paralegal who assisted Eugene in

drafting the will and was a witness to its execution. Kyles

testified that he was satisfied that Eugene knew what he was

doing when he signed the will. Cheryl Campbell witnessed the

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execution of the will to notarize Eugene’s signature. She

testified that Eugene, when asked what the document was, replied

it was his last will and testament. Eugene did not do or say

anything to cause her concern as to his understanding of what

was happening.

Dr. Elbert Hines, Eugene’s treating physician at the

nursing facility in Tennessee, testified that he saw Eugene at

least once every 60 days, beginning in the fall of 2000. He

assessed Eugene in September 2002 and testified with a

reasonable degree of medical probability that Eugene was not

confused in any way, that he knew what it was he was doing and

who his relatives were at that time. Dr. Hines saw Eugene again

in October and December 2002, and testified that he was alert

and oriented to self and place and that he had not deteriorated

since the September visit. Dr. Hines concluded with a

reasonable degree of medical probability that Eugene could

understand what property he owned and to whom he was giving it.

Additionally, David Wayne testified that on the day he took

Eugene to sign his will, his mental condition was “just

regular[,] just a regular guy.” He further testified that

Eugene was not confused and that he knew who all his family

members were. Diane testified that Eugene’s mental condition

“was great,” and that she conversed with him about family,

politics, and baseball. Arnold Lindseth, Eugene’s attorney in

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the Tennessee conservatorship, testified that in January 2003 he

spent approximately two hours with Eugene at a bank setting up

accounts and Eugene “seemed lucid [the] whole time” and “aware

of what was going on.”

Catherine Logan was Eugene’s social worker at the nursing

facility. She testified that Eugene understood who he was and

who his relatives were. She testified that he suffered no

cognitive impairment, “just short-term memory [problems].”

However, she did testify that Eugene, who enjoyed feeding the

pigeons outside the facility, sometimes thought he was feeding

pigeons when he actually was feeding rats. Additionally, she

stated that on the day Eugene signed the will he told her he was

leaving half of his estate to “Little David,” his son, when in

fact he left only 25% to him.

We review the circuit court’s finding of capacity for

sufficient evidence. Eason v. Eason, 203 Va. 246, 253, 123

S.E.2d 361, 366 (1962) (“where the case has been fairly

presented and there is credible evidence to support the

conclusion” of the fact-finder, this court will not disturb the

verdict); Gilmer, 186 Va. at 642, 44 S.E.2d at 21 (trial court’s

approval of a commissioner’s report on testator’s capacity

“should not be disturbed unless its conclusions are at variance

with the evidence”).

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 This evidence is sufficient to support the circuit court’s

ruling that Diane proved Eugene’s testamentary capacity. 6

Consequently we affirm the circuit court on that issue.

C. UNDUE INFLUENCE

We now turn to David’s claim that the circuit court erred

in finding that David Wayne and Diane did not exercise undue

influence over Eugene. It has long been the general rule that

“suspicious circumstances place a burden upon the proponents of

a will to make a satisfactory explanation.” Barnes v. Bess, 171

Va. 1, 8, 197 S.E. 403, 405 (1938).

In Martin v. Phillips, 235 Va. 523, 369 S.E.2d 397 (1988),

we observed that in the will context “a presumption of undue

influence arises when three elements are established: (1) the

testator was old when his will was established; (2) he named a

beneficiary who stood in a relationship of confidence or

dependence; and (3) he previously had expressed an intention to

make a contrary disposition of his property.” Id. at 527, 369

S.E.2d at 399. 7

6
The circuit court ruled that that Diane proved Eugene’s
testamentary capacity by clear and convincing evidence.
However, only a preponderance of the evidence was required.
Gibbs, 239 Va. at 199, 387 S.E.2d at 500.
7
With respect to the issue of undue influence in the
execution of deeds or leases, see Friendly Ice Cream Corp. v.
Beckner, 268 Va. 23, 33, 597 S.E.2d 34, 39 (2004) (overruling
Martin in part on that issue and setting forth the alternative
standards governing undue influence determinations relating to
execution of deeds and leases).
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 The factors discussed in Martin regarding persons of

advanced age are equally applicable to other testators who have

weakness of mind, whether from injury as in this case or from

any other cause. We hold that when a person with such weakness

of mind has named a beneficiary with whom the testator stood in

a relationship of confidence or dependence, and when the

testator either previously had expressed a contrary intention or

previously had expressed no intention regarding the disposition

of his property, a presumption of undue influence arises.

Our prior decisions contemplated undue influence in the

context of elderly testators, not of young victims of brain

injuries. E.g., Hartman v. Strickler, 82 Va. 225, 238 (1886)

(“Where a will executed by an old man differs from his

previously expressed intentions, and is made in favor of those

who stand in relations of confidence or dependence towards him,

it raises a violent presumption of fraud and undue influence.”)

(emphasis added); Whitelaw v. Sims, 90 Va. 588, 589, 19 S.E.

113, 113 (1894) (“old person”); Culpepper v. Robie, 155 Va. 64,

87, 154 S.E. 687, 696 (1930) (“ ‘old man’ ”) (quoting Hartman,

82 Va. at 237). Such a requirement is too restrictive in this

case, since Eugene was 22 years old at the time of his severe

brain injury and 41 when he executed his first and only will.

Likewise a “contrary expression” regarding disposition of

property would be highly unusual at age 22. The record in this

15
case does not demonstrate that Eugene even had significant

property until after his brain injury. We therefore hold that

the age and contrary disposition requirements discussed in

Martin are inappropriate in determining whether Eugene was

unduly influenced by David Wayne, his conservator, his

translator during the drafting of the will, and his major

beneficiary who would have taken nothing had the estate passed

by intestacy.

“Once the presumption of undue influence arises, the burden

of producing evidence tending to rebut the presumption shifts to

the opposing party.” Martin, 235 Va. at 529, 369 S.E.2d at 400.

Therefore, under the standards applicable in the present

context, the burden of producing evidence to rebut the

presumption of undue influence shifts to Diane. However, we

note the following statements from the bench by the circuit

judge:

[E]ven if the Court were to apply an evidentiary
presumption of undue influence against [Diane and
David Wayne,] the . . . ultimate outcome of the
case and the issue of clear and convincing
evidence respecting the . . . intent of the
testator, the ultimate outcome would be the same
in this case, whether the Court applies the
presumption or it doesn’t.

The circuit court also noted there was “no evidence” of undue

influence and there was evidence that “notwithstanding the

impairments that he suffered, [Eugene] was a stubborn man. . . .

16
if he did not want to do something, he damn well knew how to

resist.”

These statements by the circuit court clearly indicate that

if the presumption of undue influence in fact had been applied,

the court as the fact-finder in this case would not have ruled

differently. In conclusion, the circuit court, after

considering all the evidence and weighing the credibility of all

the witnesses, found by clear and convincing evidence – a higher

standard than required – that Eugene had sufficient testamentary

intent and he was not subject to undue influence. We will not

disturb that finding upon appeal.

For the reasons stated, we affirm the judgment.

Affirmed.

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