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Will contest leads to order for exhumation

GCiting “red flags of giant proportions,” a circuit judge has ordered the exhumation of a Shenandoah County man who died in 2011 and whose $2 million estate is at issue in a will contest.

Shenandoah County Judge Dennis L. Hupp granted a request for disinterment of the remains of Raymond H. Wine in a succinct Sept. 26 letter opinion in Johnston v. McAvoy (VLW 013-8-099).

Wine died on July 7, 2011, at age 94 after suffering a heart attack at an assisted living facility in Timberville.

Circumstances cast suspicion on a companion, Dolly McAvoy, according to Hupp, who heard testimony on Sept. 20.

McAvoy began working for Wine in 2002. At the time, Wine was a retired U.S. government chemist who ran a farm in New Market.

Five years later, Wine gave McAvoy his general power of attorney. Three years afterwards, Wine made a will with McAvoy as sole beneficiary. After another two years, Wine deeded his real estate holdings to McAvoy, according to Hupp’s opinion.

The real estate is worth around $2 million, according to one of the lawyers in the case.

Just two weeks after Wine gave all of his real estate to McAvoy, she used the power of attorney to place Wine in the Living Waters Home for Adults in Timberville. The placement was against his will, according to pleadings filed by Wine’s sister, who challenges the transfers to McAvoy.

McAvoy also caused the sister, Anna Johnston, to be barred from contact with Wine, according to Johnston’s pleadings.

Johnston sought appointment of a guardian and conservator in 2011. A doctor said Wine was not competent.

Johnston was permitted to visit Wine and promised him she would remove him from the home and take care of him, according to her pleadings.

McAvoy learned of the sister’s visit and arranged her own private visit with Wine a few days later, Johnston said.

Johnston said that when McAvoy had that last visit with Wine in July 2011, she was aware of Johnston’s plan to take over as guardian for Wine and she knew a judge was about to freeze Wine’s assets and order her to provide an accounting of the assets.

Wine was found unresponsive in his room on July 7, 2011. He died later that day at Rockingham Memorial Hospital. The cause was listed as a heart attack and Wine was known to have a heart condition.

Johnston alleges that McAvoy used her power of attorney to order that only comfort measures be provided to Wine in the hospital, and refused to authorize an autopsy afterward.

“I can see possible motive for foul play on her part in that hastening the death of Mr. Wine would remove his life estate in the real estate and advance the date upon which she would accede to the rest of his estate,” wrote Hupp after hearing testimony Sept. 20.

Wine’s death also would end the legal proceedings where McAvoy’s power of attorney could be terminated and her conduct questioned, the judge said.

“Ms. McAvoy’s stated reason for opposing the disinterment strains credulity,” Hupp said. The judge said it was hard for him to image that Wine ever discussed his desire not to be disinterred.

“Indeed, the whole tone of Ms. McAvoy’s testimony made her a good witness for the petitioner,” Hupp wrote.

“This may be, as the defendant suggests, a fishing expedition, but it appears at this time that the defendant may have stocked the pond,” Hupp said in ordering the exhumation.

“It’s an interesting case to say the least,” said Kevin M. Rose of Harrisonburg, McAvoy’s lawyer.

Rose dismissed suggestions of wrongdoing on the part of McAvoy. He said the will contest produced an “avalanche” of witnesses saying the will and the deed were valid.  He said the exhumation was a “hail Mary” effort to find something to overturn Wine’s transfers of assets.

Rose dismissed evidence of a purported injury observed on Wine’s face after his death. He said the medical records make no reference to any such injury.

“There’s no indication in any of the medical records of any foul play whatsoever,” Rose said.

Brian K. Brake, also of Harrisonburg, the attorney for Johnston, said he was unaware of any criminal investigation of Wine’s death, although he said Hupp’s letter opinion might spark interest among law enforcement authorities.

Rockingham County Commonwealth’s Attorney Marsha L. Garst said she was contacted regarding the case but said “no determinations have been made whether the case is criminal in nature.”

Garst said she confirmed the county sheriff’s office is not involved in a criminal investigation of the case.

Brake said it could be a month before arrangements are made to have Wine’s body removed from his grave in Shenandoah County. The exhumation would be coordinated with a state lawyer and the medical examiner’s office, he said.

VLW 013-8-099

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