FILED
STATE OF WEST VIRGINIA November 8, 2023
SUPREME COURT OF APPEALS released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Stephen M. Hood, OF WEST VIRGINIA
Plaintiff Below,
Petitioner.
vs.) No. 22-0214 (Cabell County 15-C-546)
Linda Hood, individually, and as the
Executrix of the Estate of Dorothy Hood and as the
Executrix of the Estate of Jeffrey E. Hood,
Defendants Below,
Respondents.
AMENDED MEMORANDUM DECISION
In this will contest, Petitioner, Stephen M. Hood (“Stephen”), 1 by his
counsel, Mark W. Kelley and John J. Brewster, appeals the Circuit Court of Cabell
County’s award of summary judgment to Respondents, 2 appearing by their counsel,
William L. Mundy and Leon K. Oxley, finding that there was no genuine issue of material
fact that Dorothy A. Hood (“Dorothy”) had testamentary capacity to execute her September
7, 2007 will. Stephen argues that the circuit court erred by finding there was no genuine
issue of material fact as to whether Dorothy had testamentary capacity at the time the will
was executed. Stephen also appeals the circuit court’s award of summary judgment to
1
Due to the fact that many of the people involved with this matter share the
same last name, Hood, we identify them solely by their first name in this memorandum
decision. Stephen is also known as “Sam” but will be referred to herein as “Stephen.”
2
Below, Respondents were Jeffrey E. Hood, individually and in his capacity
as Executor of the Estate of Dorothy Hood, and Linda Hood. During the pendency of this
appeal, Jeffrey E. Hood passed away. On April 5, 2023, this Court remanded this matter
to the circuit court for the limited purpose of appointing an Executor for the Estate of
Dorothy Hood.
On September 6, 2023, the circuit court entered an order appointing Linda
Hood as Executrix of the Estate of Dorothy Hood. At the time of her appointment, Linda
Hood was already serving as Executrix of the Estate of Jeffrey E. Hood. Thus, because the
events giving rise to the allegations in the complaint arose prior to the death of Jeffrey E.
Hood and all current Respondents are successors in interest to the original Respondents,
the term “Respondents” refers collectively to both iterations of the named Respondents.
“Jeffrey” refers to Jeffrey E. Hood.
1
Respondents based upon its finding that there were no genuine issues of material fact on
the issues of undue influence and tortious interference with a testamentary bequest.
Following oral argument on October 11, 2023, we conclude there are, in fact, issues of
material fact and the circuit court erred in granting summary judgment.
This Court has considered the parties’ briefs, the record on appeal, and the
oral argument of the parties. From that review, the Court finds that the circuit court erred
in granting summary judgment to Respondents. Accordingly, this case satisfies the
“limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate
Procedure and is appropriate for reversal and remand by memorandum decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Will
Dorothy died testate on July 20, 2013. She had two children, Stephen and
Jeffrey. On September 7, 2007, she signed a simple will that stated, in full:
Last Will and Testament
of
Dorothy A. Hood
BE IT REMEMBERED, that I, Dorothy A. Hood, now
residing in the City of Huntington, County of Cabell, West
Virginia, do make and publish this my Last Will and Testament
and do hereby revoke any and all wills and codicils heretofore
made by me.
Article I
I direct that all my just debts and funeral expenses,
including the expenses of the administration of my estate, be
paid by my executor hereinafter named. I further direct that
these sums shall be paid and discharged as soon after my death
as is practicable.
Article II
All the rest, residue and remainder of my estate of every
kind and nature, both real and personal, which I may own or
have the right to dispose of at the time of my death, I give,
devise and bequeath unto my son, Jeffrey E. Hood. I have
intentionally left nothing to my son Stephen M. (Sam) Hood,
knowing he was well provided for during my lifetime.
2
s/ Dorothy A. Hood
Dorothy A. Hood
[end of page one]
Article III
I hereby appoint my son, Jeffrey E. Hood, as executor
of my will and request that he be permitted to qualify without
bond.
IN WITNESS THEREOF, I have hereunto set my hand
this 7 day of Sept., 2007 to this my will written upon two
th
sheets of paper, upon each of which I have signed my name.
s/Dorothy A. Hood
Dorothy A. Hood
[end of page two]
This will was signed by Dorothy as well as two witnesses, Paul T. Farrell
(“Farrell”) and Neisha E. Brown (“Brown”). Farrell prepared the will and Brown was an
associate at Farrell’s law firm. A self-authenticating affidavit was attached to the will, also
signed by Farrell and Brown, and their signatures were notarized by Terrie L. McMahon,
now Terrie McMahon Snow (“Snow”). The affidavit contained this language:
Dorothy A. Hood, being of lawful age, in the joint presence of
the affiants, signed, published and declared the same to be her
Last Will and Testament and that they, believing the said
Dorothy A. Hood to be of sound and depositing mind and
memory, at her request and in her presence, and in the presence
of each other, subscribe their names hereto….
Dorothy had two prior wills, both of which divided Dorothy’s estate equally between
Stephen and Jeffrey. The revocation of “any and all wills and codicils” contained in the
September 7, 2007 will disinherited Stephen, with the will stating such was because
Stephen “was well provided for during my lifetime.”
B. The Will Contest
Stephen filed the underlying action to challenge the validity of the will. In
his complaint, Stephen raised the following grounds for relief: 1) Dorothy lacked
testamentary capacity to make the September 7, 2007 will; 2) The will was executed while
Dorothy was subject to undue influence; 3) Stephen expected to receive an inheritance
from Dorothy, which was interfered with by Jeffrey and Respondents; 4) Respondents
engaged in a civil conspiracy to deprive Stephen of his inheritance; and, 5) Respondents
3
converted estate assets to themselves. The first three of these grounds are at issue in this
appeal. 3
During the course of the litigation, both Stephen and Respondents filed
motions for summary judgment. 4 The circuit court granted Respondents’ motion for
summary judgment, finding there was no genuine issue of material fact on all issues. As
we believe the circuit court erred in granting summary judgment because there are genuine
issues of material fact, we will set forth the basis of such factual questions.
By 2006, Dorothy’s friends and family noted she was showing signs of
dementia. William Burdette, Jr. (“Burdette”) was a thirty-year employee of West Virginia
Electric who testified about a time when Dorothy came into West Virginia Electric in 2006
or 2007 to purchase lightbulbs and thereafter could not remember how to get home. David
Hager (“Hager”) 5 provided an affidavit stating that he witnessed Dorothy’s mental health
deteriorate beginning in 2004, following Marshall’s death. He averred that by September
2007, Dorothy could only respond to questions with short replies, which was unusual for
her. He further swore in his affidavit about an incident in which Dorothy forgot that
Hager’s mother had to have her legs amputated. Ann Justice (“Justice”) signed an affidavit
that stated Dorothy’s mental state gradually declined after Marshall’s death in 2004. In
one incident, Justice and Dorothy were attending church in Huntington when, following
the service, Dorothy asked Justice “if the service was about to begin, or if it had ended.”
Another witness, Taylor Hood (Stephen’s son and Dorothy’s grandson), testified that in
2006, Dorothy had someone else writing her checks and paying her bills. Additionally,
Stephen testified that he visited Dorothy on either September 6 or 7, 2007, and he observed
Dorothy looking through trash cans in the garage for Marshall’s nail clippers. As she
searched for them, she said it was because “[h]e needs his nail clippers. He wants his nail
clippers, and I threw them away,” though Marshall had been deceased for some time.
Additionally, evidence from Dorothy’s medical providers showed signs of
onset of dementia as early as 2006. In a record dated October 12, 2006, from Cabell
Huntington Hospital’s Regional Pain Management Center, Dr. Ahmet Ozturk noted that
3
There were multiple complaints filed in multiple civil actions below, which
were ultimately consolidated into the present civil action. The five grounds stated here
were the only grounds remaining. Stephen did not appeal the circuit court’s grant of
summary judgment on the civil conspiracy and conversion grounds.
4
Stephen sought partial summary judgment on the ground that Dorothy was
under an insane delusion that defeated testamentary capacity, while Respondents moved
for complete summary judgment.
5
Respondents spell this name as David Hagar. Because his affidavit in the
record spells his name “Hager,” we will use that spelling.
4
“[t]he patient reports problems with falling asleep, waking tired in the morning, daytime
fatigue, feeling sleepy during the day, and being forgetful of the little things.” The chart
from that visit also notes that Dorothy reported that both of her parents died of cancer,
which statement was apparently not true.
On July 26, 2007, six weeks prior to the execution of Dorothy’s will, she
presented at the St. Mary’s Medical Center Emergency Department with an “abrupt onset
of neck pain.” Dr. Chadwick Smith noted at that time that:
She cannot really tell me much more other than she has this
left-sided neck pain. She does not know how long it lasted but
she does know that it bothered her and then it radiated down
into her left chest and actually down into the left hip. She
believes that she may have some coronary artery disease. She
is not certain. She knows that she does have a pacemaker. Just
from my initial interview with this patient I believe that she
does have some underlying dementia which is present. She
repetitively ask [sic] me my name and the situation. It makes
her history extremely limited. She cannot tell me what the pain
feels like just that it hurts. She cannot tell me if it is worse with
exertion or better with rest. She cannot really provide me with
much further history other than that she did have this pain. She
is still having some persistent left sided chest pain. The patient
has a pacemaker in place making interpretation of her EKG
difficult. She does have an underlying conduction delay
secondary to the pacer. I do not have an old paced EKG for
comparison. No further history is obtained secondary to her
dementia.
(emphasis added).
Dr. Kevin Yingling was Dorothy’s primary care physician. He noted in his
charts on November 10, 2006, and on March 9, 2007, that Dorothy was “neuro abnormal.”
In a note made in Dorothy’s chart on June 6, 2007, Dr. Yingling’s nurse noted that the
nurse “ret[urned] call to p[atien]t. P[atien]t very confused about calling office. P[atien]t
stated she did not want to call us.” However, during a July 9, 2007, visit with Dr. Yingling,
he found Dorothy to be in her usual state of health and mental competence. Five days after
executing her will, on September 12, 2007, Dorothy was seen by Drs. Ataro and Elbash.
They noted Dorothy was “alert” and “oriented to time, place, and person.” Dr. Yingling
5
saw Dorothy on September 20, 2007, and made similar notations in his records. 6 During
this visit, Dr. Yingling and Dorothy discussed her current living arrangements. She
indicated she “wants to sell the house” and they discussed Dorothy potentially moving into
a retirement facility. During the course of this litigation, Dr. Yingling submitted an
affidavit stating:
That it is my opinion to a reasonable degree of medical
certainty that in September 2007, Dorothy Hood had the
requisite cognitive capacity to consent to medical procedures,
conduct her business, including executing a will, as her
cognitive capacity was appropriate to make informed decisions
for an 88-year-old individual.
In another medical record, where Dorothy was admitted to St. Mary’s
Medical Center from December 3, 2007, to December 6, 2007, it was noted that Dorothy
“has poor short term memory” and was “disoriented as to place and time. Repeatedly asks
why the nursing staff is here and what is going on.” A month later, on January 13, 2008,
Cabell County EMS was dispatched to Dorothy’s home and found Dorothy responsive on
the floor, unable to get up. After being assisted to her feet, Dorothy refused transportation
to the hospital and signed a release from responsibility. She signed the waiver as “Dorothy
Adkins,” her maiden name.
In support of his motion for summary judgment, Stephen offered an expert
report. The opinions in this report, prepared by Dr. Bobby Miller (“Dr. Miller”), 7 a Board-
6
One of the statements in Hager’s affidavit was that Jeffrey told Dr. Yingling
at a “mid-September 2007” visit that Dorothy “was exhibiting odd behavior and that her
mental condition was deteriorating.”
7
During the pendency of this matter, Dr. Miller passed
away and was replaced by Dr. David Clayman as Stephen’s
expert witness. Dr. Clayman opined that he“found numerous
instances that call into serious question [Dorothy’s] executive
function capabilities, such as the ability to make and
understand a will” and that:
[T]he majority of the medical records, together with the
affidavits and depositions of the lay collaterals, when
examined concurrently with the scientific literature on
dementia in a balanced manner, are strongly suggestive of
[Dorothy] suffering from large functional deficits resulting
from cognitive impairment as early as August 2006.
6
Certified Neuropsychiatrist and Forensic Psychiatrist found, to a reasonable degree of
medical certainty, that “Dorothy Hood, by virtue of her evolving dementia, lacked the
testamentary capacity to enter into her will dated 9/7/2007….” On its face, the report stated
that Dr. Miller had reviewed the following documents: 8
1. Last Will and Testament of Dorothy A. Hood.
2. Medical Records from Cabell Huntington Hospital
3. Medical Records from St. Mary’s Medical Center
4. Medical Records from Kevin Yingling, M.D.
5. Medical Records from Charles Meadows, M.D.
6. Medical Records from Terrence Triplett, M.D.
7. Second Amended Complaint
8. Physician’s/Medical Examiner’s Certificate of Death
9. Determinations of Incapacity Form
10. Affidavits
11. Deposition of Ortrud Vallejos
12. Deposition of Judge Paul Farrell
13. Purchase of Huntington Piping, Inc. Exhibit A
In addition to the testimony of friends and family and the medical testimony,
circumstantial evidence was adduced that Jeffrey provided information to his mother that
he arguably knew was false regarding the disposition of family property. Stephen maintains
that Jeffrey provided a list of assets to his mother that incorrectly indicated that Stephen
had previously received over 1.2 million dollars in assets. 9 Nonetheless, Jeffrey testified
8
The circuit court found that Dr. Miller’s report “does not appear to based
upon personal observations, or upon any of the medical records or affidavits presented to
the Court, and is therefore not sufficient to create a genuine issue of fact[.]” All of the
records cited in Dr. Miller’s report were provided to the circuit court by letter from
Stephen’s counsel dated June 7, 2018, in response to the “medical timeline” submitted by
Respondents. This finding is not supported by the evidence.
9
This list of assets is a typed document with hand-written notations. The
typed portion of the document states:
SUMMATION OF VALUES
Property Land Improvements Total
1. 213-215 Third Ave. $47,000 $188,000 $235,000
2. 217-219 Third Ave. 47,000 160,000 207,000
(continued . . .)
7
he never discussed Dorothy’s will with her and never gave a list of assets to Dorothy but
Dorothy gave the list to Jeffrey. In part, the perceived disposition of the assets on this list
3. 221-225 Third Ave. 56,200 37,800 94,000
4. 240 Rear Third Ave. 200,000 42,775 242,775
5. 517 Third Ave. 38,500 none 38,500
6. 519 Third Ave. 24,000 73,000 97,000
7. 529-531 Third Ave. 47,000 47,000 94,000
8. 533-535 Third Ave. 47,000 71,000 118,000
9. 2101 Kennon Lane 22,500 127,500 150,000
10. 115 Fairfax Dr. 14,900 68,100 83,000
Totals $544,100 $815,175 $1,259,275
Rounded to $1,360,000
It is the conclusion of the appraisers that the combined
market value of the subject properties as of April 25, 1980,
was:
ONE MILLION THREE HUNDRED SIXTY THOUSAND
DOLLARS
($1,360,000).
The handwritten notations include illegible writing to the left of the numbered
columns, a semi-circular line connecting numbers 5 to 8, and circles around the $150,000
and $83,000 amounts in the total column for lines 9 & 10, as well as the following:
$1,360,000
- 150,000 KENNON LANE [number 150,000 circled]
- 83,000 FAIRFAX DRIVE [number 83,000 circled]
$1,270,000 APPRAISED VALUE OF PROPERTY
GIVEN TO SAM
+ EVERYTHING ELSE THAT BELONGED TO
HUNTINGTON PIPING AND BILLY DEWEESE TO RUN
THE BUSINESS SO SAM STILL WOULDN’T HAVE TO
WORK!
8
is alleged to be the reason Dorothy left her entire estate to Jeffrey. 10 Additional
circumstantial evidence showed Jeffrey arranged to have Farrell draft the will in question
and that he may have taken Dorothy to Farrell’s office to execute the will. On that issue,
Brown testified that:
Q. Do you know how [Dorothy] got [to the will signing]?
A. I think Jeff[rey] may have brought her, but I’m not sure.
Q. What makes you think Jeff[rey] may have brought her?
A. I actually don’t remember, but I know someone brought
her. I don’t think she came by herself.
Q. Why not?
A. I don’t know the answer to that.
Dorothy came to be Farrell’s client because Jeffrey placed Dorothy in touch
with Farrell to draft a new will. Farrell testified that Jeffrey was his “best friend, other than
family” and that they had known each other for 30-35 years. They were such great friends
that nearly every Wednesday, Farrell and Jeffrey had lunch. Jeffrey informed Farrell that
his mother would like him to write a will for her and Farrell agreed to do so, despite never
having performed any legal work for Dorothy. Dorothy contacted Farrell and Farrell took
notes of that conversation. Those notes indicated that Dorothy believed Stephen owed
Dorothy $150,000 from the sale of the family business, that Dorothy believed she had
received nothing from her husband’s estate, that Dorothy believed Stephen had taken a
number of cars from her late husband without paying for them, and that Dorothy thought
she owned an interest in one of Stephen’s businesses. Farrell’s notes further show that
Dorothy believed that Stephen “has everything” and Dorothy “feels [Stephen] has monies
that belong to her,” and that she “want[s] to leave everything to Jeff[rey].” Farrell prepared
a memo following his “numerous conversations” with Dorothy that states, in part, that
Dorothy “informed me that she felt [Stephen] had obtained more than his fair share of his
father’s property over the years and she wanted to leave everything to Jeff[rey].” The will
was prepared by Farrell at Dorothy’s direction and Farrell provided testimony regarding
his discussions with Dorothy, noting that:
I had numerous conversations with her, where she expressed
her desires. She was clear. She was consistent. She asked
10
Not shown on the list, Stephen acknowledged he received a gift from
Marshall of all the common shares of stock in Appalachian Builders Corporation, worth
$739,500.
9
very pointed questions. She wanted to know about her
husband’s estate. She wanted to know about the cars. She
wanted to know about the $300,000. And she was very clear
about her instructions. So I was satisfied as to her competency.
During all of his conversations with Dorothy, Farrell testified in his deposition that “she
was very concise and precise in what she wanted done.”
Demonstrating the formalities of the will signing, Farrell, Brown, and Snow
provided affidavits about the discussions during the execution of the will regarding the
soundness of Dorothy’s mind. Their affidavits each contain the exact same language:
“That on September 7, 2007, I had discussions with Dorothy A. Hood for the purposes of
satisfying myself that Mrs. Hood was of sound mind, understood her business and the
reason she was present that day and how she wished to dispose of her property.” Farrell’s
prior deposition states this discussion included:
Q. Did you ask her any questions that would sort of test
whether or not she had sound memory?
A. I don’t have a specific memory, but in this case, I’m sure I
did ask. I’ll say general competency questions, anticipating the
litigation.
Q. Such as?
A. What day are we on? What month is it? Who is the
president? Do you understand why we are here today?
Questions like that.
Q. Would you have gone into detail, such as-
A. Detail?
Q. – you’re – do you understand that you’re choosing to give
all of your estate to one of your two sons?
A. I don’t remember saying that. I would have – probably just
general questions, current events.
Brown testified she personally asked no questions during the will signing but had this
recollection of Farrell’s discussion with Dorothy:
10
Q. Okay. Now, tell me the questions that Judge Farrell asked
her.
A. I don’t recall specific questions, but I know they were to
orient her to day, time and place.
Q. Again, to the best of your memory.
A. Honestly, I don’t remember specific questions, but I know
they were – she knew the day. She knew the time. She knew
where she was. Those were the questions that he asked.
Subsequent to the will signing, there is no dispute that Dorothy was found to
suffer from dementia, rendering her incompetent. On January 23, 2008, Dr. Mohammed
Ahmed made that finding. From our review of the medical records, this finding was
confirmed by others and resulted in Dorothy being placed in a nursing home. On January
28, 2008, Dorothy was found incompetent to make “health care decision[s], to make an
informed choice regarding the alternatives presented, and to communicate that choice in
an unambiguous manner.” On January 31, 2008, she was placed in a long-term assisted
living facility where she ultimately passed away on July 20, 2013.
Presented with these facts, the circuit court found that there were no
questions of material fact as to Dorothy’s testamentary capacity, whether Jeffrey interfered
with a testamentary bequest to Stephen, or whether Jeffrey exercised undue influence over
her will. Accordingly, the circuit court granted summary judgment to Respondents.
Stephen now appeals from that grant of summary judgment.
II. STANDARD OF REVIEW
“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt.
1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We are also mindful that “[a]
motion for summary judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify
the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York,
148 W. Va. 160, 133 S.E.2d 770 (1963). Finally, a circuit court is not to substitute its
judgment for that of a jury: “The question to be decided on a motion for summary judgment
is whether there is a genuine issue of fact and not how that issue should be determined.”
Syl. Pt. 5, Id.
11
III. ANALYSIS
A. Lack of Testamentary Capacity
West Virginia Code § 41-1-2 (1957) provides the general rule that “[n]o
person of unsound mind, or under the age of eighteen years, shall be capable of making a
will.” This requires for one to make a valid will one must have testamentary capacity. In
Syllabus Point 2 of Nicholas v. Kershner, 20 W. Va. 251, 1882 WL 3513 (1882), this Court
established the test for testamentary capacity:
It is not necessary, that a person should possess the
highest qualities of mind, in order to make a will, nor that he
should have the same strength of mind, which he may formerly
have had; the mind may be in some degree debilitated, the
memory may be enfeebled, the understanding may be weak,
the character may be eccentric, and he may even want capacity
to transact many of the ordinary business affairs of life; but it
is sufficient, if he understand the nature of the business, in
which he is engaged, has a recollection of the property, which
he means to dispose of, the objects of his bounty, and the
manner, in which he wishes to distribute it among them.
This holding was slightly modified in Syllabus Point 3 of Stewart v. Lyons, 54 W. Va. 665,
47 S.E. 442 (1903), in which this Court held:
It is not necessary that a testator possess high quality or
strength of mind, to make a valid will, nor that he then have as
strong mind as he formerly had. The mind may be debilitated,
the memory enfeebled, the understanding weak, the character
may be peculiar and eccentric, and he may even want capacity
to transact many of the business affairs of life; still it is
sufficient if he understands the nature of the business in which
he is engaged when making a will, has a recollection of the
property he means to dispose of, the object or objects of his
bounty, and how he wishes to dispose of his property.
Id. Accordingly, testamentary capacity requires one “to understand the nature and
consequences of his act, the property to be disposed of, and the objects of his bounty.” Syl.
Pt. 1, in part, Payne v. Payne, 97 W. Va. 627, 125 S.E. 818 (1924). This standard is lower
than that required to enter into a contract or prepare a deed. “Greater mental capacity is
required to execute a deed or contract than a will.” Syl. Pt. 4, Prichard v. Prichard, 135 W.
Va. 767, 65 S.E.2d 65 (1951).
12
The question of testamentary capacity is determined at the time the will was
made. “In Syllabus Point 4 of [Stewart], this Court explained that “[w]hen incapacity of a
testator is alleged against a will, the vital question is as to his capacity of mind at the time
when the will was made.” James v. Knotts, 227 W. Va. 65, 71, 705 S.E.2d 572, 578 (2010).
“The time to be considered in determining the capacity of the testator to make the will is
the time at which the will was executed.” Syl. Pt. 3, Frye v. Norton, 148 W. Va. 500, 135
S.E.2d 603 (1964). 11
The circuit court found that, “Stephen . . . has not submitted evidence
sufficient enough to overcome the evidence presented by the [Respondents] concerning the
testamentary capacity of [Dorothy].” However, as noted above, Stephen clearly offered
evidence demonstrating a genuine issue of material fact that Dorothy lacked testamentary
capacity prior to and following the execution of her will. Additionally, it is undisputed that
on January 28, 2008, a mere four months after executing the will, Dorothy was found to be
permanently incapacitated due to dementia and was thereafter moved to a long-term living
facility. Our law has long held that the conduct of the testator, before and after execution,
is admissible in a will contest to challenge testamentary capacity at the time the will was
made:
The conduct and declarations of the testator both before and
after he executed the will are competent evidence to show his
capacity at the time the will was executed, when the issue is
upon the sanity of the testator; but, after the will is made, such
conduct and declarations manifesting ignorance of the
existence of the will are not competent to show that the testator
never had made the will in question.
11
Stephen asks this Court to modify the current law that the operative time
to determine testamentary capacity is when the will was executed. See Syl. Pt. 8, Floyd v.
Floyd, 148 W. Va. 183, 133 S.E.2d 726 (1963); Syl. Pt. 6, Montgomery v. Montgomery,
147 W. Va. 449, 128 S.E.2d 480 (1962); Syl. Pt. 8, Ritz v. Kingdon, 139 W.Va. 189, 79
S.E.2d 123 (1953), overruled on other grounds by State v. Bragg, 140 W. Va. 585, 87
S.E.2d 689 (1955), and holding modified on other grounds by Law. Disciplinary Bd. v.
Ball, 219 W. Va. 296, 633 S.E.2d 241 (2006); Prichard, 135 W.Va. at 774, 65 S.E.2d at
69; Syl., Moore v. Moore, 120 W. Va. 468, 199 S.E. 257 (1938); Syl. Pt. 3, Pickens v.
Wisman, 106 W. Va. 183, 145 S.E. 177 (1928); Syl. Pt. 1, Payne; Syl. Pt. 4, Stewart; Syl.
Pt. 18, Kerr v. Lunsford, 31 W. Va. 659, 8 S.E. 493 (1888). We see no need to modify this
holding because West Virginia law has also long held that evidence of a testator’s conduct
and declarations before and after execution of a will is probative evidence to determine
testamentary capacity at the time of a will’s execution. See Syl. Pt. 13, Kerr.
13
La Rue v. Lee, 63 W. Va. 388, 394, 60 S.E. 388, 391 (1908). Allowing such testimony has
been approved by this Court since at least 1888. In the 1888 case of Kerr, testimony was
properly adduced regarding the mental condition of the testator both before and after the
execution of the will:
The proponents, to maintain the issue on their part,
introduced the will of Lewis Lunsford, deceased, dated the
27th day of April, 1881, also the two subscribing witnesses to
the will, B. S. Allison and W. H. Hearne. These two witnesses
testified to the execution of the will, and to the mental capacity
of the testator, and the proponents then rested. The contestants
then offered many witnesses, who gave evidence tending to
show that at the date of the execution of the will the testator
was wholly incompetent to make a will. This testimony had
taken a very wide range, from several years before the
execution of the will to several years after, and to his death, in
1883, and showed that more than a year after the will was
executed, on motion and petition of one of the contestants, the
estate of the testator was put into the hands of a committee.
Kerr, 31 W. Va. at 666, 8 S.E. at 496-97. The Kerr Court held, in Syllabus Point 13, that
“[e]vidence of business transactions by the testator, both before and after the execution of
the will, indicating his mental condition, are admissible on the question of his capacity at
the time the will was executed.” Id.
The evidence that Stephen placed before the circuit court was evidence of
Dorothy’s mental condition before and after the execution of the will. This evidence
included testimony from friends and family that established that Dorothy suffered from
dementia as early as 2006. Their collective testimony shows Dorothy was both confused
and forgetful. Respondents argue that claims by friends and acquaintances of “insignificant
foibles” have no bearing on testamentary capacity. However, when viewed as a whole,
this evidence clearly paints a picture of lessening mental acuity beginning in 2006.
Additionally, the medical records also contain notations that Dorothy was
suffering from dementia beginning in 2006. The records indicate she was forgetful and
“neuro abnormal” in November 2006. In June 2007, Dorothy was “very confused about
calling” Dr. Yingling’s office. In July 2007, Dr. Smith noted that he did not obtain further
history from Dorothy “secondary to her dementia.” Conversely, Drs. Ataro and Elbash, in
a visit in July 2007, noted Dorothy was “alert” and “oriented to time, place, and person,”
and Dr. Yingling provided an affidavit that his long-time patient had the requisite
testamentary capacity. Even so, following execution of the will, there was clear medical
evidence that Dorothy was experiencing symptoms of dementia when she was found
incompetent in January 2008. The evidence from friends and family, coupled with the
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medical records, demonstrate the existence of a genuine issue of material fact as to
Dorothy’s testamentary capacity.
We next examine the evidence adduced from the attesting witnesses,
Dorothy’s attending physician, and the lawyer who drafted the will. This evidence is
entitled to great weight:
The evidence of attesting witnesses, of attending
physicians, and of a lawyer who drafted the will, is entitled to
great weight on the question of mental capacity of a testator to
make a will. Although such evidence in favor of a will is not
conclusive, it must be clearly outweighed by other evidence in
order to support a verdict against the validity of the will.
Syl. Pt. 3, Floyd. At the same time, “‘[t]he circuit court’s function at the summary
judgment stage is not ‘to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.’ Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986).” Williams v. Precision
Coil, Inc., 194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995). “‘Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.’ Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91
L.Ed.2d at 216.” Id.
The opinions of Drs. Miller and Clayman plainly contrasted with the opinion
of Dr. Yingling. Both Drs. Miller and Clayman opined that Dorothy lacked testamentary
capacity at the time the will was executed, which are in direct conflict with Dr. Yingling’s
opinion that Dorothy had the requisite testamentary capacity. Respondents maintain that
the reports of Drs. Miller and Clayman are unreliable because they completely ignored
some medical records, only reviewed other records, never examined, tested, or had any
contact with Dorothy, and based their opinions upon anecdotal evidence. However, the
circuit court improperly discounted Dr. Miller’s report, finding that it was not supported
by evidence presented to the circuit court. This was not true. The records reviewed by Dr.
Miller were provided to the circuit court. Thus, there is an issue of fact as to the divergent
opinions reached by Drs. Miller and Clayman and Dr. Yingling.
Likewise, the evidence from Farrell and Brown as to Dorothy’s disposition
when she executed the will is also entitled to great weight. Stephen produced clear
evidence that the deposition testimony of Farrell and Brown conflicted with later-made
affidavits. Both Farrell and Brown state the exact same thing in their affidavits: “[t]hat on
September 7, 2007, I had discussions with Dorothy A. Hood for the purposes of satisfying
myself that Mrs. Hood was of sound mind, understood her business and the reason she was
present that day and how she wished to dispose of her property.” However, their prior
deposition testimony paints a different picture. Few questions were asked of Dorothy to
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establish her testamentary capacity and the only questions asked were to orient her to day,
time, and place. Respondents argue that there is no inconsistency between the deposition
testimony and affidavits of Farrell and Brown. We disagree. The affidavits establish that
Dorothy knew the “nature and consequences of [her] act, the property to be disposed of,
and the objects of [her] bounty.” Syl. Pt. 1, in part, Payne v. Payne, 97 W. Va. 627, 125
S.E. 818 (1924). However, the prior deposition testimony does not establish that fact.
There are plain conflicts between Dr. Yingling’s opinions and those of Drs.
Miller and Clayman and the fact witness testimony regarding Dorothy’s mental capacity.
A jury should determine whether the great weight Dr. Yingling, Farrell, and Brown are
entitled to should be outweighed by the fact testimony, medical records, and opinions
offered by Stephen. The circuit court improperly weighed this evidence and disregarded
the inconsistencies readily pointed out by Stephen.
B. Undue Influence
The circuit court further erred in granting summary judgment as to the
question of whether Jeffrey exercised undue influence over his mother’s decisions with
regard to her will. In Forney v. Farrell, 4 W. Va. 729, 1871 WL 2781 (1871), this Court
identified what constitutes undue influence in the context of a will:
1. Undue influence to avoid a will must be such as to overcome
the free agency of the testator at the time the instrument was
made.
2. If undue influence be proved to have been exercised over the
testator, both before and after the execution of the will, the
facts may be given in evidence to the jury, from which they
may infer, if they see proper, that undue influence was
exercised over the testator at the time the will was made.
Syl. Pts. 1-2, id. More recently, this Court has affirmed the principles established in Forney
and expounded upon them:
13. In a suit to impeach a will the burden of proving undue
influence is upon the party who alleges the exercise of such
influence.
14. Undue influence, to invalidate a will, must be such
influence as destroys the free agency of the testator and, in
legal effect, amounts to force and coercion; but such force and
coercion need not be physical or applied at any particular time.
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15. Undue influence which will invalidate a will is never
presumed but must be established by proof which, however,
may be either direct or circumstantial.
16. Proof of opportunity for, or possibility or suspicion of, the
exercise of undue influence is not alone sufficient to establish
undue influence.
17. Influence which arises from acts of kindness and attention
to the testator, from attachment or love, from persuasion or
entreaty, or from the mere desire to gratify the wishes of
another, if free agency is not impaired, does not constitute, and
is not alone sufficient to establish, undue influence.
18. Proof of undue influence which will invalidate a will must
be consistent with the exercise of such influence and
inconsistent with the absence of such influence.
19. To warrant a finding of undue influence which is based on
circumstantial evidence the established facts must be
inconsistent with any theory other than that of undue influence.
20. Mere suspicion, conjecture, possibility or guess that undue
influence has been exercised is not sufficient to support a
verdict which impeaches a will on the ground of undue
influence.
Syl. Pts. 13-20, Ritz. “Undue influence cannot be based on suspicion, possibility or guess
that such undue influence had been exercised, but must be proved and the burden of proof
of such issue rests on the party alleging it.” Syl. Pt. 7, Floyd.
Ample circumstantial evidence was adduced that establishes a genuine issue
of material fact as to whether undue influence was exerted upon Dorothy in this case. This
evidence showed that Jeffrey may have given Dorothy a list of assets which arguably
included incorrect and misleading information. On its face, this list of assets demonstrated
that Stephen had previously received multiple family assets during his lifetime. There was
also circumstantial evidence that Jeffrey may have driven Dorothy to the will signing.
Additionally, at the time the will was drafted, Jeffrey made contact with Farrell, his long-
time friend, to draft Dorothy’s will, although Farrell admitted he never had any prior
attorney-client relationship with Dorothy. Further, in mid-September 2007, just after the
will was executed, Jeffrey told Dorothy’s primary care physician that she was exhibiting
odd behavior and that her mental condition was deteriorating, despite having just recently
executed her will. Although Respondents maintain that there is no evidence Jeffrey did
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anything to convince Dorothy to disinherit Stephen or to influence the drafting of her will
in any way, Stephen demonstrated the presence of clear issues of material fact as to whether
or not Jeffrey exerted undue influence over his mother.
C. Tortious Interference with Testamentary Bequest
Stephen also alleges that the circuit court erred in granting Respondents’
motion for summary judgment as to Stephen’s claim that Respondents tortiously interfered
with Dorothy’s will.
It is clear that “[a]n intended beneficiary may sue for tortious interference
with a testamentary bequest.” Syl. Pt. 2, Barone v. Barone, 170 W. Va. 407, 294 S.E.2d
260 (1982). “It is analogous to tortious interference with business interests or tortious
interference with contractual relations.” Id., 170 W. Va. at 411, 294 S.E.2d at 264 (citations
omitted). We have held that:
To establish prima facie proof of tortious interference,
a plaintiff must show:
(1) existence of a contractual or business relationship or
expectancy;
(2) an intentional act of interference by a party outside
that relationship or expectancy;
(3) proof that the interference caused the harm
sustained; and
(4) damages.
If a plaintiff makes a prima facie case, a defendant may
prove justification or privilege, affirmative defenses.
Defendants are not liable for interference that is negligent
rather than intentional, or if they show defenses of legitimate
competition between plaintiff and themselves, their financial
interest in the induced party’s business, their responsibility for
another’s welfare, their intention to influence another’s
business policies in which they have an interest, their giving of
honest, truthful requested advice, or other factors that show the
interference was proper.
Syl. Pt. 2, Torbett v. Wheeling Dollar Sav. & Tr. Co., 173 W. Va. 210, 314 S.E.2d 166
(1983).
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The prior will that was revoked by the will at issue in this case divided
Dorothy’s estate equally between Jeffrey and Stephen. Jeffrey’s purported actions, as
noted above, would, if proven, go toward establishing that (1) there was an existing will;
(2) Jeffrey interceded; (3) such intercession caused Dorothy to change her will to disinherit
Stephen; and, (4) Stephen was disinherited from half of Dorothy’s estate. Stephen has
presented sufficient evidence to create a material question of fact as to each of these factors,
thus precluding the entry of summary judgment in favor of Respondents.
D. Insane Delusions
The circuit court granted summary judgment to Respondents as to the
question of Dorothy’s testamentary capacity, finding that Stephen had to prove that
Dorothy was experiencing an insane delusion due to an “extraordinary belief in
spiritualism” in order to prevail. What constitutes an insane delusion affecting
testamentary capacity has never been thoroughly discussed in West Virginia law. We have
found two occasions in will contests in which we have even referred to such concept. See
Kerr and Rice v. Henderson, 140 W. Va. 284, 291, 83 S.E.2d 762, 767 (1954). Because of
their lack of detailed analysis, neither case is particularly helpful to answer this question.
Thus, we turn to other jurisdictions for guidance. Under Florida law, “[w]here there is an
insane delusion in regard to one who is the object of the testator’s bounty, which causes
him to make a will which he would not have made but for that delusion, such will cannot
be sustained.” Newman v. Smith, 77 Fla. 633, 677-78, 82 So. 236, 249 (1918) (citation and
quotation omitted). A number of courts have found that a person lacks testamentary
capacity when an insane delusion materially affects the will’s property disposition. See In
re Russell’s Will, 44 N.W.2d 231, 235 (Wis. 1950) (delusion must “materially affect the
making of the will”); Kingdon v. Sybrant, 158 N.W.2d 863, 866 (N.D. 1968) (insane
delusion must materially affect the will); Matter of Estate of Kesler, 702 P.2d 86, 88 (Utah
1985) (insane delusion must materially affect disposition of one’s property); Breeden v.
Stone, 992 P.2d 1167, 1171 (Colo. 2000) (insane delusion must materially affect property
disposition); In re Estate of Gallavan, 89 P.3d 521, 522 (Ill. 2004) (insane delusion must
materially affect property disposition). An insane delusion that materially affects a will
interferes with the testamentary capacity of the testator:
[I]f the testator is eccentric or mean-spirited and dislikes family
members for no good reason, but otherwise meets the three-
prong capacity test, leaving the family members out of the will
would not be due to lack of testamentary capacity. However,
when mental illness that produces insane delusions renders the
testator unable to evaluate or understand his relationships with
the natural objects of his bounty and this inability affects the
terms of his will, the testator lacks the mental capacity to make
a valid will.
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Matter of Est. of Killen, 937 P.2d 1368, 1372 (Ariz. Ct. App. 1996).
Because West Virginia is a notice pleading state, See W. Va. R. Civ. P. 8(a)
(requiring a pleading setting “forth a claim for relief” to “contain ... a short and plain
statement of the claim showing that the pleader is entitled to relief.”); id. 8(e)(1) (“Each
averment of a pleading shall be simple, concise, and direct.”), and an insane delusion
affecting testamentary capacity is not necessarily an independent cause of action, pleading
a lack of testamentary capacity generally could encompass an allegation that Dorothy was
under insane delusions that affected the disposition of property in her will. Despite the fact
that a lack of testamentary capacity could be established by several factors, the circuit court
relied upon Rice to conclude that an insane delusion requires an “extraordinary belief in
spiritualism.” However, it is clear that a showing of such belief is not, as the circuit court
found, the only way one can be shown to lack testamentary capacity based upon an insane
delusion. Moreover, such a showing would not, in and of itself, necessarily constitute a
lack of testamentary capacity. Indeed, this Court in Rice expressly found that
“testamentary capacity cannot be determined alone by what one believes.” Rice, 140 W.
Va. at 291, 83 S.E.2d at 767. Thus, the circuit court erred in finding that Stephen was
required to demonstrate that Dorothy was under an “extraordinary belief in spiritualism,”
in order to establish an insane delusion affecting testamentary capacity.
Because the circuit court erred in granting summary judgment on this issue,
we remand this issue for the circuit court to consider whether Dorothy was under an insane
delusion, and, if so, if such insane delusion materially affected the property disposition in
her September 7, 2007 will.
IV. CONCLUSION
For the foregoing reasons, we find the circuit court erred and we reverse and
remand for further proceedings.
Reversed and remanded.
ISSUED: November 8, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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