Kiddell v. Labowitz

733 S.E.2d 622

Laurie A. KIDDELL, et al.

v.Ken LABOWITZ, Executor of the Estate of Louise Bradford Judsen.

Record No. 111236.

Supreme Court of Virginia.

Nov. 1, 2012.

Jacob A. Kamerow, Alexandria, for appellants.

Anne M. Heishman (Peter Dingman; Dingman and Labowitz, Alexandria, on brief), for appellee.

Present: All the Justices.

Opinion by Justice CLEO E. POWELL.

In this will contest, we consider whether the circuit court erred in instructing the jury as to the existence of the presumption of testamentary capacity. Appellant contends that, under the facts of this case, the presumption disappeared, and it was error to instruct the jury regarding the presumption. We conclude that the presumption does not necessarily disappear in the face of evidence to the contrary. Moreover, the circuit court, in this case, did not rule, at the motion to strike, that the presumption had been rebutted. Therefore, the circuit court did not err in instructing the jury about the presumption, and we affirm the circuit court's judgment.

I. FACTS AND PROCEEDINGS

Louise Bradford Judsen executed a will on April 19, 2010, (“the April will”), naming her beneficiaries: Judsen's cousin, Laurie Kiddell (“Laurie”); Laurie's husband, Lee Kiddell (“Lee”); their daughter, LeAnn Kiddell (“LeAnn”); two other first cousins; and the “American Cancer Association.” The April will was prepared by Laurie from an online template.

On June 15, 2010, Judsen executed another will (“the June will”), naming Kenneth E. Labowitz, an attorney, as the executor of her estate. In the June will, Judsen bequeathed her dog and a cash gift for the dog's care to Laurie. Judsen bequeathed one-third of her residuary estate to the “Leukemia & Lymphoma Society Inc.,” one-third to the “American Cancer Society Inc.,” and one-third to a “Head Trauma Research Center” to be chosen in the sole discretion of her executor.

Judsen died on June 18, 2010, and the June will was admitted to probate. Laurie and LeAnn (hereinafter referred to collectively as “Kiddell”) filed a “Complaint to Impeach Will, Nullify Probate Order and Admit Earlier Will to Probate” against Labowitz, the Leukemia and Lymphoma Society, Inc., and the American Cancer Society, Inc. In this complaint, Kiddell alleged that Judsen lacked testamentary capacity when she executed the June will.¹ Kiddell sought to have the order admitting the June will to probate nullified and the April will admitted to probate. Labowitz filed an answer denying Kiddell's claims.²

At a jury trial, the evidence showed that Judsen was diagnosed with a terminal illness in February 2010. On May 13, 2010, Judsen's health had deteriorated and she was admitted to a hospital.

At the request of Laurie, who lived in Illinois, Labowitz contacted Judsen in the hospital because Laurie wanted him to assist Judsen with her financial matters. Specifically, Laurie wanted Labowitz to be authorized to act under Judsen's power of attorney instead of Laurie. According to Labowitz, Judsen became “upset” with Laurie for sending Labowitz “to [perform duties under] the new power of attorney.” Despite her anger, Judsen executed a new power of attorney naming Labowitz as her attorney in fact. Labowitz testified that, during the meetings that he had with Judsen, she was insistent on returning home, concerned about her dog, and aware that she had only a small amount of cash among her assets.

According to Labowitz, Judsen also told him she wanted to execute a new will. Consequently, Labowitz contacted Sean Dunston, an attorney practicing primarily in the area of wills, trusts, and estates, to assist Judsen with her new will. Although Laurie sent the April will to Labowitz, Labowitz did not give Dunston the April will because Labowitz had previously filed it with the Fairfax County Circuit Court. Labowitz did not believe that he told Dunston about this will.

Dunston met with Judsen at the hospital on multiple occasions concerning the preparation of her will. According to Dunston, during a meeting with Judsen on June 3, she explained that she wanted to dispose of her estate by providing for the care of her dog and leaving the residue of her estate to three specific charities. On June 14, Dunston reviewed a draft will with Judsen. Judsen indicated that there was an error in the paragraph stating that she was “not unmarried.” She advised Dunston that she was divorced. When Dunston asked if she wished to include any family members as beneficiaries, Judsen answered “no.” However, she told Dunston that she wanted Laurie to take care of her dog. Dunston specifically reviewed with Judsen the clause that bequeathed her residuary estate to three charities.

Dunston finalized Judsen's will and returned to the hospital on June 15 with two paralegals from his office. After Dunston read all the provisions of the will aloud to Judsen, she confirmed that the will expressed her wishes, that she was of sound and disposing mind, and that she was signing the document freely and voluntarily. Judsen then executed the will. Dunston and one of the paralegals from his office witnessed the testator's execution of her will, and the other paralegal served as the notary public in accordance with the provisions of Code § 64.1–49. According to Dunston, there was no question in his mind that when Judsen executed the June will, she knew her property and the natural objects of her bounty. She understood that she was executing a will and knew how she wished to dispose of her property. The two paralegals also confirmed that although the testator seemed tired, she was coherent and able to respond to Dunston's questions. Neither paralegal had any concerns about the testator's ability to execute the will. One of them testified that the testator “fully underst[ood]” the document she was executing.

Laurie testified that she and Judsen were “very close” when they were growing up. Since 2005, when Judsen became involved in Laurie's business, they spoke several times each week. Laurie also testified that at some point, she talked with Judsen about drafting a will, and according to Laurie, Judsen stated that she wished to leave her estate to Laurie, her husband and daughter. Nevertheless, Laurie admitted that Judsen became angry with her when she contacted Labowitz to assist with Judsen's financial matters. Laurie believed that Judsen was being “spiteful” when she executed the June will with terms that were dramatically different than the terms of the April will.

James Carlton, a tenant in Judsen's home and a witness to the April will, testified that when he visited Judsen at the hospital on June 14, she did not maintain eye contact with him and responded “yes” to every question he asked her. Carlton did not, however, see Judsen on the day she executed the June will. He also stated that Judsen had a tendency to “get mad at anybody who didn't do what she wanted when she wanted.”

Dr. Abdulkadir Salhan, one of Judsen's attending physicians, testified that he completed a report on June 15, 2010, for the purpose of evaluating her competency. In that report, he opined that Judsen was “not competent” and “ha [d] a disability that prevent[ed] [her] from making or communicating any responsible decisions concerning [her] property.” Dr. Salhan, however, conceded that medical record notations dated June 15 stated that Judsen understood “her disease, her diagnosis, stage, and prognosis.” Dr. Salhan also admitted that he did not question Judsen concerning her property, finances, or family, and that he did not specifically assess her capacity to execute a will.

Dr. Thomas Hyde, who testified at trial as an expert in the field of neurology, reviewed Judsen's medical records, treatment plan, and medications. He opined that Judsen's cognitive abilities were markedly impaired on June 15, 2010, such that she would have been precluded from fully understanding the nature and extent of her property, the members of her family and “to whom she was giving property and in what manner.” Dr. Hyde further opined that Judsen would have known that she was signing a paper but would not have known what was on it.

At the close of Kiddell's case, Labowitz moved to strike the evidence, arguing that Kiddell failed to overcome the presumption of testamentary capacity by a preponderance of the evidence. The circuit court denied Labowitz' motion.

At the close of all the evidence, Kiddell moved to strike Labowitz' evidence, arguing that the evidence was insufficient to prove that Judsen had testamentary capacity when she executed the June will. The circuit court denied the motion and allowed the case to go to the jury.

In submitting the case to the jury, the parties agreed on two jury instructions, Instructions 5 and 6, related to this appeal. Jury Instruction 5 stated:

Your verdict must be based on the facts as you find them and on the law contained in all of these instructions.

The only question in this case is whether this writing is the last will of Louise Judsen. In deciding this question, you will have to consider this issue:

(1) Did Louise Judsen have testamentary capacity when she signed it?

On this issue, the proponents of the will have the burden of proof by the greater weight of the evidence.

Your decision on this issue must be governed by the instructions that follow.

The instruction that followed, Jury Instruction 6, stated:

You shall find the writing dated June 15, 2010 to be the last will [of] Louise Judsen if the proponent proved by the greater weight of the evidence that:

(1) Louise Judsen was capable of making a will at the time she executed the writing.

You shall find that the writing dated June 15, 2010 was not the last will [of] Louise Judsen if the proponent failed to prove the element above.

The circuit court also granted two jury instructions over Kiddell's objection that allowed the jury to consider the existence of the presumption of testamentary capacity and whether the presumption had been rebutted....