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FIELDS, ET AL. v. FIELDS, ET AL (59942)


FIELDS, ET AL. v.
FIELDS, ET AL
.


April 17, 1998
Record No. 970112

HENRY M. FIELDS, ET AL.

v.

BONNIE LOU SALMON FIELDS, ET AL.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

Charles H. Smith, Jr., Judge
PRESENT: All the Justices


In this will contest, we consider whether the trial court
properly determined that the testator lacked the requisite
testamentary capacity at the time he executed the later of two
wills offered for probate.

Robert McKinley Fields (testator) died on May 23, 1994,
leaving two wills. The earlier of these two wills, dated August
28, 1975, was admitted to probate by the order of the clerk of
the Circuit Court of Washington County on May 25, 1994. On that
same day, a will dated November 1, 1988, was also presented to
the clerk for probate.

The testator was married three times. Four children, Katie L.
Fields Harris, Bertia F. Sanders, Mary Lou Fields Wise, and Henry
M. Fields, were born of the first marriage. Three children, Dale
Fields, Carl Fields, and Robert Fields, were born of the second
marriage. The testator’s final marriage produced one child, David
Wayne Fields. Henry M. Fields, Bertia F. Sanders, and Mary Lou
Fields Wise (petitioners) are the proponents of the 1988 will.
Bonnie Lou Salmon Fields, the testator’s widow, and the
testator’s remaining children were all named as respondents to
the petition to have the 1988 will admitted to probate.

The 1975 will initially acknowledges Bonnie Lou Salmon Fields
as the testator’s wife, David Wayne Fields as his child of that
marriage, and four children from the two prior marriages, but
fails to make any reference to the three other children from
those marriages. The will divides the estate into equal shares to
be distributed to Bonnie Lou Salmon Fields and David Wayne
Fields. In two separate clauses, the will expressly excludes the
testator’s other children from receiving any share of the estate.
The will contains attestation and self-proving clauses with three
witnesses each and a notary’s certification in accordance with
Code ? 64.1-87.1.

The 1988 will, which expressly revokes all prior wills,
provides for the distribution of one-third of the estate to the
testator’s widow and two-thirds equally among all eight of his
children. A further provision directs that any debts due from a
beneficiary are to be deducted from that beneficiary’s share and
that "heirs that did not contribute to the expense to my
daughter, Mary Lou, for taking care of me during the week days
while my wife was at work, equal amount is to be deducted from
any inheritance that will be due them." This will also
contains attestation and self-proving clauses with two witnesses
each and a notary’s certification.

The petition challenged the order admitting the 1975 will to
probate and sought an order declaring the 1988 will valid and
admitting it to probate. Code ? 64.1-78. An answer
demanding strict proof of the claims of the petition was filed on
behalf of the widow and the testator’s five other children.

In a hearing before the chancellor, the petitioners presented
testimony from the notary and the two individuals who witnessed
the execution of the 1988 will. The notary testified that she
knew the testator as a customer of the bank where she was
employed. She further testified that she spoke with the testator
and that he acknowledged the writing to be his will. She further
testified that she would not have notarized the execution of the
will had she felt there was anything "suspicious" or
that the testator was not "sane."

Both of the witnesses to the 1988 will were also employees of
the bank. One testified that she recalled being asked by the
manager of the bank to witness the execution of the will, but
that she did not remember anything particular about the testator.
The other also recalled being asked to witness the execution of
the will and testified that she believed the testator to have
been "sane" at that time.

The respondents presented evidence from numerous lay witnesses
concerning the general mental and physical capacity of the
testator between 1975 and 1988. In sum, that evidence shows that
the testator was of declining health, that he was increasingly
confused, and that he occasionally engaged in inappropriate
behavior. Several witnesses testified that at times the testator
would not recognize family members, could not discuss current
affairs, and could not understand a legal document. On
cross-examination, several of the witnesses conceded, however,
that the testator could recognize family members and discuss
family matters on occasion. Although all of these witnesses had
regular contact with the testator, none testified concerning
specific events reflecting his testamentary incapacity on
November 1, 1988.

Mary Lou Fields Wise testified in rebuttal that she frequently
visited the testator and that he was able to converse about
politics, read the Bible with her, and sing songs. She further
testified that while visiting the testator on November 1, 1988,
she informed him that she had to go to the bank. The testator
asked to accompany her because he also needed to go to the bank.
In additional rebuttal testimony, Henry M. Fields testified that
he was also present on November 1, 1988, and that the testator
stated that he wanted to go to the bank because he had a paper he
needed to have notarized. Both of these witnesses disputed the
testimony of the respondents’ witnesses that the testator was
confused and could not recognize family members.

In the final decree, the chancellor found that the 1988 will
was invalid "due to [the testator's] physical and mental
[incapacity]." The decree further provided that the 1975
will was the testator’s last will and that its admission to
probate was proper. We awarded the proponents of the 1988 will
this appeal.

The sole issue in this appeal is whether the evidence supports
the chancellor’s finding that the testator lacked the requisite
testamentary capacity when he executed the 1988 will. Our
resolution of this issue is guided by well established
principles.

The proponents of the 1988 will had the burden of proving the
existence of that degree of mental competence required for the
valid execution of a will by a preponderance of the evidence and
retained that burden throughout the proceeding. Gibbs v. Gibbs,
239 Va. 197, 199, 387 S.E.2d 499, 500 (1990); Code
? 64.1-47. In clarifying the degree of mental competence
required for a person to have testamentary capacity, we have held
that a testator need not "retain all the force of intellect
which he may have had at a former period," Wooddy v.
Taylor
, 114 Va. 737, 741, 77 S.E. 498, 500 (1913), and under
certain circumstances may even be legally incompetent to transact
other business. See Tate v. Chumbley, 190 Va. 480,
493, 57 S.E.2d 151, 157 (1950). Rather, for testamentary capacity
to exist, it is sufficient that at the time the testator executed
his will, he was capable of recollecting his property, the
natural objects of his bounty, and their claims upon him, and
knew the business about which he was engaged and how he wished to
dispose of his property. Tabb v. Willis, 155 Va. 836, 859,
156 S.E. 556, 564 (1931).

"[T]he time of execution of the will . . . is
the critical time for determining testamentary capacity. The
testimony of witnesses as to the mental capacity of the
testat[or] at this time carries great weight." Thomason
v. Carlton
, 221 Va. 845, 853, 276 S.E.2d 171, 175 (1981).
Evidence of sickness or impaired intellect at other times is
insufficient, standing alone, to render a will invalid. Gilmer
v. Brown
, 186 Va. 630, 639, 44 S.E.2d 16, 20 (1947); see
also Tate, 190 Va. at 495, 57 S.E.2d at 158
(testatrix on furlough from mental institution was not per
se incompetent to execute will).

Here, the petitioners presented testimony from the two
individuals who witnessed the execution of the 1988 will and the
notary who notarized the signatures of the testator and the
witnesses. The notary expressly stated that she spoke with the
testator, that he acknowledged the writing as his will, and that
she would not have notarized the execution of the will had she
believed that he lacked the capacity to execute a will. One of
the two witnesses corroborated the notary’s testimony. The other
witness did not disavow her attestation in the self-proving
clause.

In addition, Mary Lou Fields Wise and Henry M. Fields
testified that, on the day the testator executed the 1988 will,
they were in his presence. Both of these witnesses related the
testator’s desire to go to the bank to have a paper notarized,
indicating no confusion in that desire or the purpose
contemplated by the testator as reflected by the occurrence at
the bank.

The respondents’ evidence related to the testator’s mental
capacity did not directly contradict the testimony of those
present at the time the testator executed the 1988 will or
at any time on the day it was executed. While the respondents’
evidence established that at other times the testator might very
well have lacked the requisite mental capacity to execute a will,
the respondents offered only lay witness testimony. As such, the
observations of these witnesses are valuable only to provide
"facts which indicate such incapacity" generally, and
not as evidence of incapacity on the date the will was executed. Thornton
v. Thornton’s Executors
, 141 Va. 232, 237, 126 S.E. 69, 70
(1925). In such cases, the testimony of lay witnesses will not
overthrow the testimony of the witnesses to the execution of the
will where the latter evidence is clear as to the testator’s
capacity at the time the will was executed. See id.
at 239, 126 S.E. at 71.

Accordingly, we hold that the evidence of the witnesses to the
execution of the 1988 will, which must be afforded great weight,
coupled with the evidence of the other witnesses present with the
testator on November 1, 1988, establishes by a preponderance of
the evidence that the testator had the requisite testamentary
capacity to execute the will on that date.

For these reasons, we will reverse the chancellor’s decree
that the 1975 will was properly admitted to probate and remand
with instructions that the 1975 will be withdrawn from probate
and that the 1988 will be admitted to probate.

Reversed and remanded.

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