In the case of Parson v. Miller, 296 Va. 509, 822 S.E.2d 169 (Va. 2018), the Virginia Supreme Court reversed the trial court’s refusal to grant a motion to strike the evidence and the judge’s decision that the evidence was sufficient to support a jury verdict that the will was obtained by undue influence.
In Parson, a daughter sued her deceased father’s niece, individually and as executor of his estate, to impeach a will that named the niece as the beneficiary of the deceased father’s estate, on the grounds of undue influence and lack of testamentary capacity. The father was 80 years old at his death, and had made a new will naming his niece just a week before his death.
At trial, a son of the decedent testified that his father had told him that he intended to leave everything to his daughter, but never specifically mentioned his will. A friend of the daughter testified that she had visited the father with the daughter and that the father had asked to daughter to live with him, as he was giving her his home, then read aloud a portion of his will. Another friend of the daughter testified that she had visited the father in the hospital in the month before his death, and that he was agitated by his niece’s insistence that he sell his house to her, responding that he intended to leave it to his daughter. The niece admitted in her testimony that she had purchased a will kit for the father. She also admitted that she lived nearby and only started visiting him in the two years before his death. The will had been witnessed by the niece’s sister and son-in-law.
After the plaintiff daughter rested her case, the judge denied the defendant niece’s motion to strike the evidence with respect to undue influence, but granted it with respect to lack of testamentary capacity.
The defendant niece presented her case. Her son-in-law testified that he was asked to sign the will by the father; that he was not made aware of the terms of the will; and that the others present were all relatives or in-laws of the niece. A friend of the decedent then testified that he advised the father to have a will done. That the father had complained that his daughter would not come live with him, and that she would just sell the house if he gave it to her, contrary to his wishes to keep it in the family. He further testified that the niece had taken care of the father during the last several months of his life. The niece’s brother testified that the father had expressed an interest to his daughter in turning his home into a nursing home after his death, which his daughter declined to accept, saying she lived too far away and did not have time. The daughter did not visit after that disagreement. A social worker and a nurse testified about the father’s mental capacity. All of the niece’s witnesses testified that the father was strong-willed and made his own decisions about things.
The defendant niece testified that the father had requested that she buy a will kit. She further testified that she was not present when he prepared it and signed it. She also claimed that the father stated that if his daughter would not live with him now, he would allow her to live in the house in the future.
The jury returned a verdict in favor of the daughter, and the niece made a motion to set aside the verdict, which was denied by the judge. The niece appealed the judge’s denial of her motion to strike the undue influence count on the grounds that the presumption of undue influence did not shift the burden of persuasion to the defendant niece.
On appeal, the Supreme Court stated the standard of review, that it “will not set aside a trial court’s judgment sustaining a jury verdict unless it is ‘plainly wrong or without evidence to support it’”, quoting Fruiterman v. Granata, 276 Va. 629, 668 S.E.2d. 127 (Va. 2008) quoting Va. Code § 8.01-680).
The Court stated that a presumption of undue influence arises upon proof of three factors: (1) the testator was old when he made the will; (2) he named a beneficiary who stood in a relationship of confidence or dependence; and (3) he had previously expressed a contrary intention as to the disposition of his property.
The Court then recognized two different competing theories about the effect of establishing a presumption, the Thayer theory or “bursting bubble theory” and the Morgan Theory. Under the bursting bubble theory, the presumption shifts the burden of production to the other party, such that when that party introducing countervailing evidence, the presumption “bursts”, and has no further effect on the trial. In contrast, under the Morgan theory, both the burden of production and the burden of persuastion shift to the other party once the presumption is established.
Virginia has not adopted a single rule on the effects of presumptions. In this case, the Court would continue to use the Thayer or “bursting bubble theory” with respect to the presumption of undue influence. Undue influence must be established by clear and convincing and as with fraud, the ultimate burden is upon the person who alleges it. The Court further distinguished a mere inference, which unlike a presumption, does not shift the burden of production. Not all influence is undue; to be sufficient it must cause the testator to have the attitude of it is not his or her will, but it must be done. If the presumption has been rebutted, the jury should not receive an instruction on it.
In this case, the Court recognized that the daughter’s evidence was sufficient to support a presumption of undue influence. The presumption was rebutted by the niece’s evidence concerning the father’s strong-willed character and his actions. There was no evidence supporting the idea that his volition was overcome, even though the circumstances supported a presumption. As the burden of persuasion remained with the daughter, the judge should have granted the niece’s motion to strike and the issue of undue influence should never have been submitted to the jury. The trial judge’s decision was reversed and the case remanded.