PRESENT: All the Justices
HENRY M. FIELDS, ET AL.
OPINION BY
v. Record No. 970112 JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 1998
BONNIE LOU SALMON FIELDS, ET AL.
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
In this will contest, we consider whether the trial court
properly determined that the testator lacked the requisite
testamentary capacity at the time he executed the later of two
wills offered for probate.
Robert McKinley Fields (testator) died on May 23, 1994,
leaving two wills. The earlier of these two wills, dated August
28, 1975, was admitted to probate by the order of the clerk of
the Circuit Court of Washington County on May 25, 1994. On that
same day, a will dated November 1, 1988, was also presented to
the clerk for probate.
The testator was married three times. Four children, Katie
L. Fields Harris, Bertia F. Sanders, Mary Lou Fields Wise, and
Henry M. Fields, were born of the first marriage. Three
children, Dale Fields, Carl Fields, and Robert Fields, were born
of the second marriage. The testator’s final marriage produced
one child, David Wayne Fields. Henry M. Fields, Bertia F.
Sanders, and Mary Lou Fields Wise (petitioners) are the
proponents of the 1988 will. Bonnie Lou Salmon Fields, the
testator’s widow, and the testator’s remaining children were all
named as respondents to the petition to have the 1988 will
admitted to probate.
The 1975 will initially acknowledges Bonnie Lou Salmon
Fields as the testator’s wife, David Wayne Fields as his child
of that marriage, and four children from the two prior
marriages, but fails to make any reference to the three other
children from those marriages. The will divides the estate into
equal shares to be distributed to Bonnie Lou Salmon Fields and
David Wayne Fields. In two separate clauses, the will expressly
excludes the testator’s other children from receiving any share
of the estate. The will contains attestation and self-proving
clauses with three witnesses each and a notary’s certification
in accordance with Code § 64.1-87.1.
The 1988 will, which expressly revokes all prior wills,
provides for the distribution of one-third of the estate to the
testator’s widow and two-thirds equally among all eight of his
children. A further provision directs that any debts due from a
beneficiary are to be deducted from that beneficiary’s share and
that “heirs that did not contribute to the expense to my
daughter, Mary Lou, for taking care of me during the week days
while my wife was at work, equal amount is to be deducted from
any inheritance that will be due them.” This will also contains
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attestation and self-proving clauses with two witnesses each and
a notary’s certification.
The petition challenged the order admitting the 1975 will
to probate and sought an order declaring the 1988 will valid and
admitting it to probate. Code § 64.1-78. An answer demanding
strict proof of the claims of the petition was filed on behalf
of the widow and the testator’s five other children.
In a hearing before the chancellor, the petitioners
presented testimony from the notary and the two individuals who
witnessed the execution of the 1988 will. The notary testified
that she knew the testator as a customer of the bank where she
was employed. She further testified that she spoke with the
testator and that he acknowledged the writing to be his will.
She further testified that she would not have notarized the
execution of the will had she felt there was anything
“suspicious” or that the testator was not “sane.”
Both of the witnesses to the 1988 will were also employees
of the bank. One testified that she recalled being asked by the
manager of the bank to witness the execution of the will, but
that she did not remember anything particular about the
testator. The other also recalled being asked to witness the
execution of the will and testified that she believed the
testator to have been “sane” at that time.
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The respondents presented evidence from numerous lay
witnesses concerning the general mental and physical capacity of
the testator between 1975 and 1988. In sum, that evidence shows
that the testator was of declining health, that he was
increasingly confused, and that he occasionally engaged in
inappropriate behavior. Several witnesses testified that at
times the testator would not recognize family members, could not
discuss current affairs, and could not understand a legal
document. On cross-examination, several of the witnesses
conceded, however, that the testator could recognize family
members and discuss family matters on occasion. Although all of
these witnesses had regular contact with the testator, none
testified concerning specific events reflecting his testamentary
incapacity on November 1, 1988.
Mary Lou Fields Wise testified in rebuttal that she
frequently visited the testator and that he was able to converse
about politics, read the Bible with her, and sing songs. She
further testified that while visiting the testator on November
1, 1988, she informed him that she had to go to the bank. The
testator asked to accompany her because he also needed to go to
the bank. In additional rebuttal testimony, Henry M. Fields
testified that he was also present on November 1, 1988, and that
the testator stated that he wanted to go to the bank because he
had a paper he needed to have notarized. Both of these
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witnesses disputed the testimony of the respondents’ witnesses
that the testator was confused and could not recognize family
members.
In the final decree, the chancellor found that the 1988
will was invalid “due to [the testator’s] physical and mental
[incapacity].” The decree further provided that the 1975 will
was the testator’s last will and that its admission to probate
was proper. We awarded the proponents of the 1988 will this
appeal.
The sole issue in this appeal is whether the evidence
supports the chancellor’s finding that the testator lacked the
requisite testamentary capacity when he executed the 1988 will.
Our resolution of this issue is guided by well established
principles.
The proponents of the 1988 will had the burden of proving
the existence of that degree of mental competence required for
the valid execution of a will by a preponderance of the evidence
and retained that burden throughout the proceeding. Gibbs v.
Gibbs, 239 Va. 197, 199, 387 S.E.2d 499, 500 (1990); Code
§ 64.1-47. In clarifying the degree of mental competence
required for a person to have testamentary capacity, we have
held that a testator need not “retain all the force of intellect
which he may have had at a former period,” Wooddy v. Taylor, 114
Va. 737, 741, 77 S.E. 498, 500 (1913), and under certain
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circumstances may even be legally incompetent to transact other
business. See Tate v. Chumbley, 190 Va. 480, 493, 57 S.E.2d
151, 157 (1950). Rather, for testamentary capacity to exist, it
is sufficient that at the time the testator executed his will,
he was capable of recollecting his property, the natural objects
of his bounty, and their claims upon him, and knew the business
about which he was engaged and how he wished to dispose of his
property. Tabb v. Willis, 155 Va. 836, 859, 156 S.E. 556, 564
(1931).
"[T]he time of execution of the will . . . is the critical
time for determining testamentary capacity. The testimony of
witnesses as to the mental capacity of the testat[or] at this
time carries great weight." Thomason v. Carlton, 221 Va. 845,
853, 276 S.E.2d 171, 175 (1981). Evidence of sickness or
impaired intellect at other times is insufficient, standing
alone, to render a will invalid. Gilmer v. Brown, 186 Va. 630,
639, 44 S.E.2d 16, 20 (1947); see also Tate, 190 Va. at 495, 57
S.E.2d at 158 (testatrix on furlough from mental institution was
not per se incompetent to execute will).
Here, the petitioners presented testimony from the two
individuals who witnessed the execution of the 1988 will and the
notary who notarized the signatures of the testator and the
witnesses. The notary expressly stated that she spoke with the
testator, that he acknowledged the writing as his will, and that
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she would not have notarized the execution of the will had she
believed that he lacked the capacity to execute a will. One of
the two witnesses corroborated the notary’s testimony. The
other witness did not disavow her attestation in the self-
proving clause.
In addition, Mary Lou Fields Wise and Henry M. Fields
testified that, on the day the testator executed the 1988 will,
they were in his presence. Both of these witnesses related the
testator’s desire to go to the bank to have a paper notarized,
indicating no confusion in that desire or the purpose
contemplated by the testator as reflected by the occurrence at
the bank.
The respondents’ evidence related to the testator’s mental
capacity did not directly contradict the testimony of those
present at the time the testator executed the 1988 will or at
any time on the day it was executed. While the respondents’
evidence established that at other times the testator might very
well have lacked the requisite mental capacity to execute a
will, the respondents offered only lay witness testimony. As
such, the observations of these witnesses are valuable only to
provide “facts which indicate such incapacity” generally, and
not as evidence of incapacity on the date the will was executed.
Thornton v. Thornton’s Executors, 141 Va. 232, 237, 126 S.E. 69,
70 (1925). In such cases, the testimony of lay witnesses will
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not overthrow the testimony of the witnesses to the execution of
the will where the latter evidence is clear as to the testator’s
capacity at the time the will was executed. See id. at 239, 126
S.E. at 71.
Accordingly, we hold that the evidence of the witnesses to
the execution of the 1988 will, which must be afforded great
weight, coupled with the evidence of the other witnesses present
with the testator on November 1, 1988, establishes by a
preponderance of the evidence that the testator had the
requisite testamentary capacity to execute the will on that
date.
For these reasons, we will reverse the chancellor’s decree
that the 1975 will was properly admitted to probate and remand
with instructions that the 1975 will be withdrawn from probate
and that the 1988 will be admitted to probate.
Reversed and remanded.
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