Great weight given to testimony of drafting attorney and attesting witnesses sufficient to establish validity of deathbed will.
When Dorothy Weedon became ill in 2000, her daughter Mary Ann became her primary care-giver. In 2003, Dorothy contacted an attorney who prepared a will for Dorothy making a gift to her church and leaving the remainder of her property in various amounts to her five children, Larry, Perry, Billie, Gloria, and Mary Ann. By 2006, Dorothy’s illness had progressed and Mary Ann quit her job to take care of her mother full time. In December of 2006, Dorothy had a quarrel with Billie, and thereafter in 2007 contacted her lawyer to prepare a new will eliminating all provisions for Billie. Other than eliminating the gifts to Billie, the 2007 will was similar to the 2003 will.
In 2008, Dorothy was admitted to the hospital for unplanned surgery and was informed by her doctors that she might lapse into a coma as a result of the surgery. Dorothy was given a number of pain medications and showed signs of confusion at times. Before the surgery, Dorothy contacted her lawyer to further revise her will. Dorothy spoke with her lawyer’s assistant at length. During this conversation, Dorothy was adamant that she wanted to change her will to leave everything to Mary Ann and nothing to her other children. The assistant was confident that Dorothy was competent and relayed Dorothy’s instructions to the lawyer who then drafted a new will. Dorothy executed the new 2008 will in the hospital in the presence of two disinterested witnesses and a notary public, and then died the next day.
Mary Ann probated the 2008 will. The other children contested the 2008 will on the grounds that (1) Dorothy did not have testamentary capacity to execute the 2008 will and (2) the 2008 will was the result of undue influence by Mary Ann. The circuit court held that the 2008 will was invalid and Mary Ann appealed.
On appeal, the Virginia Supreme Court reversed the circuit court and upheld the 2008 will on the grounds that: (1) great weight should be given to the testimony of the will’s draftsman and witnesses; (2) although there was evidence that Dorothy was sometimes confused and disoriented during her hospital stay, the testimony of the lawyer, the lawyer’s assistant, and the witnesses showed that Dorothy was lucid and competent at the time she requested the changes to the will and at the time she signed it; (3) with respect to undue influence, the ultimate determination is whether the influence was of such a character to control the mind and actions of the testator, and the influence must amount to coercion; and (4) although Mary Ann had a close relationship with her mother and that Dorothy had previously intended to leave bequests to her other children, Mary Ann’s influence on her mother did not amount to duress and did not overtake her mother’s free will.