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No, not in the case of Sandra Flora Sneed Larsen v. Pamela Larsen Stack, et al., Record No: 190832 (2020) where the Supreme Court of Virginia upheld the trial court’s decision that the will did not create a life estate, but did give the surviving spouse the right to reside in the house and access the entire property until she was no longer able to do so.

In Larsen, the two surviving children of the decedent filed a case for declaratory relief against the surviving spouse, their stepmother.  The decedent’s will gave the farm and house to his children, subject to his wife’s “right to reside in [the] home . . . for so long as she is physically and mentally able to do so.”   In addition, the surviving spouse was to receive rental income from a cell phone tower on the property.  In the next section of the will, the testator gave a life estate in other real estate to his surviving spouse with a remainder interest to his children.

The circuit court judge held that the language of the will regarding the farm was ambiguous, and therefore allowed parol evidence – testimony from the attorney who drafted the will.  The attorney testified that it was the testator’s intent to allow his wife to live on the property until her condition deteriorated to the point that she would go into a nursing home, and that he did not provide for any greater property rights in order to maintain her eligibility for Medicaid (which will pay for unskilled care and nursing home costs while Medicare will not.)  The judge held that the will did not create a life estate, but did give the surviving spouse something less – the right to reside on the property and access to all the property for so long as she was physically and mentally able to do so. 

The surviving spouse appealed the adverse declaratory judgment to the Supreme Court of Virginia with three assignments of error: 1. The circuit court judge erred in deciding the will did not create a life estate; 2. The circuit court judge erred in deciding the will gave the decendent’s children access to the property while she was alive; and 3. The circuit court judge erred in allowing parol evidence of the testator’s intent.

The Supreme Court of Virginia first recognized that the intent of the testator controlled the interpretation of the will, that it was the ““polar star” to guide and direct the interpretation of the will,” citing Feeney v. Feeney, 295 Va. 312, 318 (2018) quoting Roller v. Shaver, 178 Va. 467, 472 (1941).  Next the Court recognized that the trial court must review the whole will and apply the plain meaning rule in determining the testator’s intent.  The Court then noted that  extrinsic or parol evidence could properly be allowed if the language of the will is ambiguous, capable of more than one interpretation, citing Gaymon v. Gaymon, 258 Va. 225, 230 (1990). 

In this case, the Court upheld the trial court’s decision that a life estate had not been created because (1) the drafting attorney testified that that was not the testator’s intent; (2) the testator had expressly given a life estate in another parcel of property in the following section, demonstrating that this grant must be something different; and (3) the grant of rents from the cell phone tower only for as long as the surviving spouse resided in the house contradicted the granting of a life estate in the farm property.  The Supreme Court also upheld the trial court’s decision that the surviving spouse’s right to possession was not exclusive, but rather concurrent with the rights of access by the surviving children, as exclusive possession was not expressed.  The Court recognized that the only limitation on the surviving children’s rights to access was that the widow’s right required that she be free from molestation and interference by them, citing its prior decision in White v. White, 183 Va. 239 (1944).

Finally, the Court noted that parol evidence was properly allowed by the trial court judge in Larsen, as it was necessary to determine the scope of the surviving spouse’s rights.  In a will case, a court may allow parol evidence to determine the “quantum of interest which is to pass by will”, Parsons v. Fitchett, 148 Va. 322, 329 (1927).  In particular, this will did not clearly indicate whether the surviving spouse’s interest was limited to the dwelling unit or if she had the right to use the entire property.  The drafting attorney’s testimony was necessary to resolve the ambiguities in the will.

The Larsen case illustrates the importance of being very specific in the provisions of a will with respect to the scope or quantum of rights granted if the bequests or devices are not absolute or unconditional.

Virginia Code §64.2-308 provides that a spouse who willfully deserts and abandons his or her spouse loses his or her statutory rights under intestate succession, and rights to claim an elective share, or to claim exempt property, the family allowance, or the homestead allowance.  By implication, an estranged spouse who has not willfully deserted or abandoned his or her spouse may still enjoy the legal rights of a surviving spouse in the estate of the deceased spouse.  What about the rights of an estranged spouse who signs a written separation agreement with the typical general waiver of claims found in Virginia?

The Supreme Court of Washington held that such a waiver did terminate the spouse’s rights in a case of first impression for that state, In the Matter of the Estate of Michael Petelle, No: 97463-02, writ granted 451 P.3d 334 (2019) affirming the published decision of its court of appeals.  While the State of Washington, a community property state, differs from the Commonwealth of Virginia, an equitable distribution state, in marital property rights, the opinion may still provide persuasive authority in Virginia, as Washington nevertheless allows couples to alter the 50-50 division of marital property by a written separation agreement.

In contrast to Virginia’s course of descents in Virginia Code §64.2-200, the State of Washington in its RCW 11.04.015, gives a surviving spouse all of the net community estate, but only three quarters of the net separate estate if the decedent has surviving parents (A surviving spouse’s share in Virginia is not affected by surviving parents of the decedent).  The surviving estranged spouse in the Petelle case attempted to realize this statutory inheritance by qualifying as administrator and probating her deceased husband’s estate until she was stopped by the decedent’s mother.  While separated, the spouses in Petelle had signed a comprehensive, written separation agreement which included a general waiver of claims, as is typical in Virginia.  Although the general express waiver did not specifically mention rights under intestate succession, the Supreme Court noted that the separation agreement included a provision that the agreement was a full and final settlement of all marital and property rights, as is also typical in Virginia separation agreements.  Further, the court noted that the rights to intestate succession is a result of marital status, which would be encompassed in the waiver of all marital and property rights.  Finally, the court noted that the separation agreement included a provision that the agreement would survive the death of either party and be enforceable by heirs or legal representatives of the estate, also typical in Virginia separation agreements.  The court did not accept the surviving spouse’s arguments that she could only lose her rights through the disclaimer process or that the alleged reconciliation of the parties restored her statutory rights.  The court concluded by restating its prior decision that a general waiver was sufficient to extinguish rights, without specifically listing each and every right waived.

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.

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