Supreme Court of Virginia Reverses Jury Finding Of Undue Influence And, Consequently, Inheritance Passes to Decedent’s Niece Instead of Daughter
Parson v. Miller, 296 Va. 509 (2018), was decided by the Supreme Court of Virginia (the “Supreme Court”) last December. The Court recognized that variations of burden-shifting occur within the context of legal presumptions, but in the case of a will contest, existence of the presumption of undue influence shifts only the burden of production; if the will proponent submits evidence to rebut the presumption, then the burden shifts back to the will contestant, who retains the burden of persuasion.
Every legal opinion worth reading is supported by an interesting fact pattern. And so, that is where I begin. Kenneth Coffey owned his home, situated on a single acre in Augusta County, Virginia, for more than forty years. The adjoining property is owned by the family of Coffey’s niece, Vickie Parson. Coffey executed a will on July 15, 2013, leaving everything he owned at the time of his death to Vickie, and one week later, on July 22, 2013, Coffey passed away, at the age of eighty.
Enter: daughter Deneen. Deneen Miller and her father, Coffey, lived together until she was eleven years old, when her parents separated, and she and her mother moved to Winchester. She reconnected with her father when she was fourteen and represented to the court that she remained very close with him from that point until his passing. Although Deneen continued to reside in Winchester, she would visit Coffey in Augusta County, which was about two hours from her home.
According to Deneen, after two hospital admissions in May and June of 2013, Coffey returned home on hospice care, with only a few expected months to live. In the last weeks of his life, Deneen visited on several occasions but declined Coffey’s offer to move back to Lyndhurst and live with him. The last time Deneen visited Coffey was on July 6, 2013—she called numerous times after that visit but was unable to reach him. At trial, Deneen and three other witnesses testified that they had heard Coffey previously state that everything he had was to pass to Deneen at his death, and Deneen and one of her friends testified that Coffey had made reference to his Last Will in front of them.
Deneen filed suit against Vickie, individually and as the named executor of Coffey’s estate, and, pertinent on appeal, sought to impeach the will executed within a week of Coffey’s passing on the ground of undue influence. She claimed that Vickie manipulated Coffey, put ideas in his head and gained control over him, though she did not have specific details or examples to provide the court.
Vickie admitted that she had only come to know Coffey well during the final two years of his life, but began checking regularly on Coffey in January of 2013, and assisted him in getting to doctors’ appointments. In Coffey’s final weeks, Vickie was his primary caregiver. According to Vickie, to oblige Coffey’s request, in June of 2013, Vickie purchased a will kit. She testified that she did not assist in preparing his will; witnesses to Coffey’s signing were Vickie’s daughter and son-in-law. Vickie testified that when Coffey showed her the executed will on the day before he passed away, she was shocked and asked why he had done that. Coffey responded that it was his desire that the property remain in his family and that he knew Deneen was not moving back to Lyndhurst, but instead would sell the property if he left it to her.
A social worker and nurse care manager testified that they had no concern for Coffey’s cognitive abilities during the final weeks of his life. The hospice chaplain testified that on July 19, 2013, three days before his passing, Coffey openly discussed his concern of who to leave his house and land to, and that he worried Deneen would sell the property if left to her. Coffey’s best friend testified that Coffey had expressed this same concern to him.
After a two-day trial, the jury returned a verdict for Deneen. But the Supreme Court reversed the jury verdict, ruling in favor of Vickie.
The function of a legal presumption is to compel the fact finder to draw an inference from a given set of facts. In other words, if the facts at hand warrant the presumption, the party against whom the presumption operates then holds a burden to offer evidence sufficient to rebut the presumption. However, there are two competing theories on the effect legal presumptions have on the evidentiary burden of persuasion. The Thayer theory, initially developed by Professor James B. Thayer, is known as the “bursting bubble theory.” It states that so long as the party against whom the presumption operates presents evidence to rebut the presumption, the burden of persuasion shifts back to the contesting party to prove the factual issue in question. The presumption disappears like a bursting bubble, with reference thereto no longer included in jury instructions. In contrast, the Morgan theory, credited to Professor Edward Morgan, holds the position that a legal presumption not only creates a burden on the party against whom the presumption operates to rebut such presumption, but also shifts the burden of production so that the non-contesting party must carry the burden of proof and submit sufficient evidence to the trier of fact to prove his position by a clear-and-convincing evidentiary standard.
The legal presumption of undue influence arises in a will contest when:
- the testator was old when his will was established;
- he named a beneficiary who stood in a relationship of confidence or dependence; and
- he previously had expressed an intention to make a contrary disposition of his property.
In Parson v. Miller, the Supreme Court clarified that in Virginia, when undue influence is alleged in the context of will creation, the Thayer theory applies. Therefore, if the contesting party pleads sufficient facts to show that the above three circumstances exist, the proponent of the will, to avoid a verdict in the contestant’s favor, must present evidence to rebut the presumption of undue influence. The presumption functions to shift the burden of production to the will proponent; however, if the proponent puts forward countervailing evidence to prove that the testator was not unduly influenced, the burden of production shifts back to the party contesting the will. The burden of persuasion always remains with the will contestant, and policy dictates the Supreme Court’s reasoning—the burden of showing undue influence should rest upon the party who alleges it. Evidence must be submitted to prove that the testator was deprived of his own disposition and free will, acting not of his own accord but at the direction of another.
Deneen pleaded facts sufficient to raise the presumption of undue influence: Coffey was eighty years old at the time he executed his will; Vickie was his primary caregiver; and multiple individuals would testify that Coffey had previously stated everything he had would pass to Deneen at his death. The burden of production then shifted to Vickie. However, Vickie presented evidence to rebut the presumption: Coffey’s social worker and nurse care manager corroborated her position that Coffey was of sound mind in his final days; Coffey had reasons for wanting to leave his property to Vickie, namely because: (i) Vickie cared for Coffey in his final years, whereas his daughter periodically visited but refused to move in with him after numerous requests had been made; and (ii) Coffey was strong-willed and wanted his property to remain in the family. Further, the chaplain who visited Coffey in his final days testified how he was conflicted by this decision. The bubble burst, and with it, the presumption and Deneen’s expected inheritance disappeared. Deneen failed to present evidence sufficient to establish by a clear-and-convincing evidentiary standard that Vickie overcame Coffey’s will and that it was her intent, but not his, to leave his property to Vickie at his passing.
A foundational principle of Trusts and Estates Law is to draft and construe governing documents to effectuate the testator’s or settlor’s intent. By maintaining the burden of persuasion with the party contesting a will, assurance is made to not construe the testator’s action as something other than his own free will without necessary evidentiary precautions in place. In my initial reflection on this case, I admit that the jury verdict resonated with me—it seems fundamentally unjust for a father’s inheritance to pass pursuant to a will drafted a few days before death to his newly acquainted niece instead of his daughter. A niece who played a significant role in the will’s execution. However, it was Coffey who signed the document, and Deneen was unable to offer substantial evidence to prove that he was not acting of his own accord. The Supreme Court got it right. Further, let this opinion serve as a reminder for us all to care for our aging parents, visit often, and keep an eye on the next door neighbor.