Weedon v. Weedon ( 2012 )


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  • PRESENT: All the Justices
    MARY ANN WEEDON, INDIVIDUALLY AND
    AS EXECUTOR OF THE ESTATE OF
    DOROTHY ROSE WEEDON
    OPINION BY
    v.   Record No. 101901                 JUSTICE CLEO E. POWELL
    January 13, 2012
    LARRY S. WEEDON, ET AL.
    FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
    Gordon F. Willis, Judge
    In this appeal of the judgment in a will contest, we
    determine whether the circuit court erred in 1) determining that
    the decedent lacked the requisite testamentary capacity when she
    executed her contested will, 2) failing to properly weigh the
    evidence of the witnesses at the time of the execution of the
    contested will by ruling that the drafting attorney did not have
    the right to delegate certain duties owed to the testator, and
    3) ruling that the contested will was the result of undue
    influence.    We hold that the trial court erred in ruling that
    the decedent lacked testamentary capacity and was unduly
    influenced when executing the contested will.
    FACTS AND PROCEEDINGS
    Dorothy Rose Weedon, the decedent, was the mother of five
    children: Larry S. Weedon, L. Perry Weedon ("Perry"), Billie
    Thomas Weedon, Gloria Weedon Sharp and Mary Ann Weedon.     In
    2000, Dorothy was diagnosed with multiple myeloma.    At that
    time, Mary Ann decided that she would help take care of her
    mother.
    In 2003, Dorothy contacted J. Richmond Low, Jr., an
    attorney, for assistance in drafting a will, a power of
    attorney, and an advanced medical directive.   Low's assistant,
    Rosalind Garnett, met with Dorothy and characterized her as a
    woman who was "very adamant" and "once [Dorothy] told you this
    is what she wanted, you knew that’s what she wanted."    When Low
    met with Dorothy to draft her will, he found her to be a woman
    of few words who knew what she wanted and got it. 1   In the 2003
    will, Dorothy made a monetary gift to her church. In addition,
    she gifted a burial plot to Billie, Perry, Larry and Gloria.
    Mary Ann, Billie and Larry would receive a gift of real property
    upon Dorothy's death. In the event that Mary Ann predeceased
    Dorothy, Mary Ann's gift was to be split between Billie and
    Perry.
    As Dorothy's illness progressed, Mary Ann took on
    additional responsibilities in caring for her mother and spent
    more time with her, including taking her mother to her dialysis
    treatments. By 2006, Mary Ann left her job to be able to devote
    more time to her mother's care.
    1
    Low met Mary Ann for the first time when Mary Ann sought
    assistance to probate her mother's 2008 will.
    2
    On Christmas Eve of 2006, Dorothy had a quarrel with Billie
    about Dorothy's unwillingness to allow Gloria into her home for
    Christmas.    Mary Ann witnessed this disagreement and Billie
    blamed her for it.    After the incident, Dorothy informed Mary
    Ann, Larry and Perry that she was taking Billie out of her will.
    In May of 2007, Dorothy contacted Garnett to have Low draft
    a new will for her.    In it, she again gave a monetary gift to
    her church.   She also devised real property to Mary Ann, Perry
    and Larry, but not Billie.    This will provided that should Mary
    Ann predecease her mother, Billie was not to receive any portion
    of Mary Ann's share.    Dorothy also removed Billie as the
    alternate agent in her advanced medical directive.
    On May 20, 2008, Dorothy was admitted to the Medical Center
    at the University of Virginia (“UVA Hospital”) for an unplanned
    orthopedic surgery.    During the next week to ten days, a number
    of pain medications were prescribed for and administered to
    Dorothy, and she was confused at times as a result.    During her
    hospitalization, doctors discovered that surgery was required to
    regulate Dorothy’s blood pressure so that she could continue
    with dialysis.   If Dorothy were required to stop dialysis
    treatments, doctors expected that she would lapse into a coma
    within 72 hours.
    When the doctor told Dorothy the prognosis, she simply
    stated that she wanted to contact Low.    Mary Ann described her
    3
    mother’s mental state at the time as being “fine.”      Mary Ann
    suggested that Dorothy wait until after her surgery to contact
    Low but Dorothy insisted that she wanted to do it then.      Paula
    Capobianco, a social worker in the palliative care unit, told
    Mary Ann that she should help Dorothy contact Low before her
    surgery so that she could have her affairs in order and have
    some measure of peace.
    On June 19, 2008, Garnett received a telephone call from
    Mary Ann who told her that Dorothy was going to have surgery and
    wanted to change her will.      Garnett remembered Dorothy as a
    previous client.      Garnett told Mary Ann that Low was out of the
    office but that she would get back to Mary Ann and Dorothy as
    soon as she had spoken to Low.      When Garnett spoke to Low, he
    told her to call back and speak directly with Dorothy.      Garnett
    knew this to mean that she was to determine if Dorothy was
    mentally competent to execute a will.
    When Garnett spoke with Dorothy, she recognized Dorothy's
    voice. 2     Garnett explained to Dorothy that they would need to go
    through each provision in her 2007 will even though Dorothy had
    already told Garnett that she desired to give everything to Mary
    Ann.       In response to each bequest of real property in the 2007
    will, Dorothy stated that she wanted Mary Ann to get each item.
    2
    When asked to describe how Dorothy's voice sounded,
    Garnett said that it sounded "very fine."
    4
    Garnett did not review the sections that were already making
    gifts to Mary Ann.    Garnett made notes on a copy of the 2007
    will as she spoke with Dorothy.
    Dorothy asked that the new will be drawn up immediately
    because she was having surgery soon.      Garnett testified that
    Dorothy’s voice sounded “exactly the same” as it did when they
    spoke in 2007 regarding the modifications to the 2003 will.
    When asked whether she had any concerns that someone was
    pressuring Dorothy to make this change, Garnett responded
    “[a]bsolutely not.”    Although Garnett did not specifically
    inquire as to Dorothy's mental capacity, she was confident that
    Dorothy knew what she was doing and was doing what she wanted.
    Garnett denied that there was anything in Dorothy’s voice that
    would indicate that she was being threatened to leave everything
    to Mary Ann.
    After this initial phone call, Garnett realized that she
    had not reviewed the section about the burial plots with
    Dorothy, so she called her back.       Mary Ann answered the phone
    and Garnett asked her to ask Dorothy what she wanted to do with
    the plots.   Dorothy said that she wanted to keep the plots as
    planned in the 2007 will but informed Garnett that there were
    three additional plots.    She said that she would like to use one
    plot herself and would like to leave the remaining two to Mary
    Ann.
    5
    Upon his return to the office, Low drafted a new will using
    Garnett's notes.   Low did not speak with Dorothy or Mary Ann nor
    did he meet with Dorothy.   Based on what Garnett told him, he
    believed that Dorothy "was of herself, knew what she was doing,
    and that nobody was going to hold a gun to her head."      Low
    trusted Garnett's judgment of Dorothy's mental state because
    Garnett had been his assistant since 1993 or 1994.      After Low
    made the changes to the will, Garnett typed it and faxed it to a
    social worker in Charlottesville.
    Mary Ann was present when her mother executed the will in
    the presence of Capobianco, Vicki Marsh, and Betsy Townsend.
    Marsh is a patient representative at UVA Hospital.      Marsh served
    as a witness to the execution of the will, but she could not
    remember who asked her to do so.       Marsh did not recall many
    specifics of this will execution but she knew that they "would
    not have witnessed . . . the document if [Dorothy] was not
    alert."
    Capobianco also witnessed Dorothy execute her 2008 will,
    but she later testified that she could not testify to Dorothy's
    mental capacity at that time.   Like Marsh, Capobianco did not
    recall many details from that day.      However, she explained that
    she would have declined to witness the execution of the will had
    she had any concerns about the proceeding.      She testified that
    Dorothy signed without assistance.      Capobianco described Dorothy
    6
    as alert and stated that she was able to sit up by herself.       At
    no time during the execution of the will did she think that
    Dorothy appeared confused or disinterested.      In fact, Capobianco
    testified that during her hospital stay, Dorothy was only
    confused once or twice because of "some trouble I think related
    to infection."
    Townsend, a patient representative, served as the notary
    during the execution of Dorothy's will.      In her capacity as a
    patient representative and notary, Townsend has refused to serve
    as a notary when "it's either obvious that the patient is not
    even awake enough to, or capable enough to understand or to talk
    to or whatever, or if I go up and one of the staff says this
    person is not competent . . . ."       Townsend had no recollection
    of serving as the notary in this case.
    The next day, during the surgery, the lower lobe of
    Dorothy’s left lung collapsed.   On the morning of Monday, June
    23, 2008, Dorothy was “agitated and not doing well.”      Mary Ann
    called her siblings.   Dorothy died later that day.
    In addition to gifts made in her will, Dorothy left a
    certificate of deposit for Gloria, valued at $5,700, and another
    certificate of deposit for Mary Ann, valued at approximately
    $16,000.
    Following Dorothy's death, Mary Ann probated the 2008 will
    and qualified as executor for the 2008 will.      Larry, Perry,
    7
    Billie, and Gloria sued Mary Ann, individually and as executor, 3
    to challenge the 2008 will.   At the trial, the circuit court
    allowed Dr. Frederick A. Phillips, the medical examiner for the
    City of Fredericksburg and surrounding counties, to be
    qualified, over Mary Ann’s objection, as an expert to give “an
    opinion as to a person’s mental state as it relates to the cause
    of death.”   Based solely on a review of Dorothy’s medical
    records, Dr. Phillips opined that during the last week of her
    life, Dorothy would have been confused with intervals of
    lucidity.    He further testified that “[c]ommunication skills
    would be I think – I know would be quite limited.”   He opined
    that she “would become less responsible for her words, her
    thoughts, her activities.   She would be literally in a chemical
    fog, if you will.”
    In support of their argument that the 2008 will was not
    valid, Gloria, Billie, Larry and Perry generally blamed Mary Ann
    for that will.   Gloria and Billie believed that their mother was
    very protective of Mary Ann and Larry said that Dorothy often
    told him that she had to do things for Mary Ann because "she
    hasn't got anybody."   They all claimed to have a good
    relationship with their mother.   Despite this, Gloria admitted
    3
    Hanover Baptist Church was also named as a defendant in
    this action. However, the claims against Hanover Baptist Church
    were dismissed with prejudice by a Consent Order dated February
    12, 2010.
    8
    that she had not visited her mother during hospitalizations
    since 2006 or 2007 because she received an email from Perry or
    his wife telling her not to visit because it was too upsetting
    for Dorothy.   The children also stated that they helped their
    mother financially and physically by taking her to appointments
    and doing work around her home.
    With the exception of Gloria, the children described
    visiting their mother in the hospital.    They opined that
    Dorothy's health was deteriorating during this time.    Billie
    stated that Dorothy did not immediately recognize him when he
    came to visit.   He described a telephone conversation that he
    overheard her have with Mary Ann on June 16th as "disoriented."
    He said that on most visits, "you had to extract a response from
    [Dorothy]."    Perry testified that around June 14 or 15, he
    brought Dorothy her favorite food but she had no interest in
    eating it.    Larry said that on June 15, his mother stopped
    calling him by the nickname she gave him at birth, and he counts
    that as the day that she died.    He also testified that Dorothy
    often called him by his brothers' names or referred to his
    children by the wrong names.
    Larry and Perry claimed that Mary Ann attempted to deny
    them access to their mother and her doctors.    Without going into
    specifics, Perry testified that Dorothy frequently told him
    things that she did not want Mary Ann to hear.
    9
    Nancy Cable testified as a rebuttal witness on behalf of
    Mary Ann.   Nancy testified that she knew Dorothy "very well"
    from 1992 until her death in 2008.   In fact, in 2003 and 2007,
    Nancy served as a witness for Dorothy's wills, but she never
    read the wills nor did Low read the wills to her.    Nancy also
    testified that she is "close, personal friends" with Mary Ann.
    Nancy denied that her relationship with Mary Ann had any effect
    on her testimony.
    Nancy saw Dorothy on June 1, 2008 and then again on June
    22, 2008.   Nancy described Dorothy as being much weaker and
    thinner than the last time she had seen Dorothy.    She also
    testified that Dorothy had difficulty getting comfortable.
    Nancy testified that when she visited Dorothy on June 22,
    2008, the day before Dorothy died, Dorothy immediately
    recognized her and that they began "talking about everything"
    including Nancy's recent travels.    Nancy agreed to Dorothy's
    request that she spend the night with her.   During this time,
    conversation would stop and then resume.   At one point, Dorothy
    mentioned that she had decided to change her will.   Dorothy also
    mentioned that she had not seen Perry since Nancy had left on
    June 1.   Nancy said that Dorothy told her "very declaratively"
    that she wanted "Mary Ann [to] have what she had."   The two then
    talked about Nancy's children and her doctors.   Nancy brought
    her food from the cafeteria.   During the night of June 22 and
    10
    the early morning hours of June 23, the chaplain came in several
    times and the three prayed.   Dorothy requested the Lord's Prayer
    but did not say it.   Nancy did not know whether Dorothy could
    not or chose not to say it.   Dorothy died later that day.
    At the conclusion of the evidence, the trial court found
    that Dorothy became more mentally and physically "feeble" during
    her hospitalization, but she still had "periods of lucidity."
    The court noted that Dorothy was unable to make the telephone
    call to Low's office by herself and that Mary Ann read the 2008
    will to Dorothy before it was executed.
    The court held that Mary Ann had not carried her burden to
    show that Dorothy had testamentary capacity at the time the will
    was drafted.
    In cases like this, there are certain
    protections that occur when a lawyer is directly
    involved with someone who wishes to have a Will
    drafted. The lawyer has certain professional
    fiduciary duties to see that certain thresholds
    are reached in drafting the Will. I don't think
    those professional duties can be delegated to a
    non-attorney; or if they are, then the
    protections are weakened. I don't think an
    attorney can rely solely on the representations
    of a non-attorney employee to reach certain
    decisions that are required by a professional in
    drafting a Will and seeing that Will is properly
    executed for a client. It is a factor that the
    Court has to consider in reaching its decision
    here today.
    11
    The trial court reiterated that "[a]ll of Mr. Low's efforts on
    June 19th, of 2008, on behalf of Dorothy Rose Weedon, were done
    through Mrs. Garnett and primarily Mary Ann Weedon."
    The court further ruled that
    the proponent has failed to carry its burden to
    show that at the time that the Will was signed,
    the June 19th, 2008 Will, that [Dorothy] had
    testamentary capacity at that time. That is
    based on the lack of relationship directly with
    the attorney who drafted the Will and even more
    so – there's even more of a disconnect between
    the attorney and the decedent with regard to its
    execution.
    The trial court further held that even if Mary Ann had
    proven that Dorothy had the requisite testamentary capacity at
    the time that she executed the will, "the opponent of the Will
    has shown by clear and convincing evidence that there was undue
    influence in this case."   In support of this holding, the court
    specifically found that
    the decedent was feeble in mind and body at the
    time the Will was executed. There was obviously a
    very close, confidential, and fiduciary
    relationship between Mary Ann Weedon and the
    decedent. Mary Ann Weedon had her Power of
    Attorney and had been her primary caretaker,
    based on the evidence, over the last couple of
    years. And the testator had obviously previously
    expressed a contrary intention in the 2007 Will
    with regards to the disposition of her property.
    Accordingly, the trial court ruled that the 2008 will had
    been impeached and the 2007 will should proceed to probate.
    12
    II. ANALYSIS
    A. Testamentary Capacity
    The proponent of a will bears the burden of proving by a
    preponderance of the evidence that at the time the testatrix
    executed her will she possessed testamentary capacity, i.e.,
    "'was capable of recollecting her property, the natural objects
    of her bounty and their claims upon her, knew the business about
    which she was engaged and how she wished to dispose of the
    property.'"   Gibbs v. Gibbs, 
    239 Va. 197
    , 199, 
    387 S.E.2d 499
    ,
    500 (1990)(quoting Tabb v. Willis, 
    155 Va. 836
    , 859, 
    156 S.E. 556
    , 564 (1931)).
    [T]he proponent of the will is entitled to a
    presumption that testamentary capacity existed by
    proving compliance with all statutory
    requirements for the valid execution of the will.
    Once the presumption exists, the contestant then
    bears the burden of going forward with evidence
    to overcome this presumption, although the burden
    of persuasion remains with the proponent.
    Id. at 200, 387 S.E.2d at 501.   This presumption arises where
    the will is
    in writing and signed by the [testatrix] . . . in
    such manner as to make it manifest that the name
    is intended as a signature; and moreover, unless
    it be wholly in the handwriting of the testator,
    the signature shall be made or the will
    acknowledged by him in the presence of at least
    two competent witnesses, present at the same
    time; and such witnesses shall subscribe the will
    in the presence of the testator, but no form of
    attestation shall be necessary.
    Code § 64.1-49.
    13
    "To show incapacity, the contestants need only go forward
    with evidence sufficient to rebut the presumption of
    testamentary capacity."   Gibbs, 239 Va. at 200, 387 S.E.2d at
    501.   The burden of persuasion remains with the proponent.      Id.
    We will not reverse the trial court unless its decision is
    plainly wrong or without evidence to support it.      See Gilmer v.
    Brown, 
    186 Va. 630
    , 642, 
    44 S.E.2d 16
    , 21 (1947) (a trial
    court's ruling "should not be disturbed unless its conclusions
    are at variance with the evidence.").
    The parties do not appear to question that the will was
    duly executed.   Therefore, the presumption arises.    We will
    assume without deciding that the testimony of the opponents of
    the will was sufficient to overcome this presumption.
    Therefore, our focus is on whether Mary Ann successfully
    produced evidence of Dorothy's testamentary capacity.
    The trial court in this case found that Mary Ann did not
    meet her burden of proving that Dorothy had testamentary
    capacity at the time that she executed the contested will.       The
    court largely based this decision on its ruling that Low, the
    attorney who drafted the will, never met or spoke with Dorothy
    himself and impermissibly delegated the determination of
    Dorothy's capacity to his assistant. The basis for this ruling,
    however, is unsupported by the law.
    14
    Although not the subject of the appeal, we recently found
    testamentary capacity based, in part, on testimony from a
    paralegal who drafted a will.   Parish v. Parish, 
    281 Va. 191
    ,
    195, 
    704 S.E.2d 99
    , 102 (2011).    There, we reiterated that
    " '[i]n determining the mental capacity of a testator, great
    weight is to be attached to the testimony of the draftsman of
    the will, of the attesting witnesses, and of attending
    physicians.' "   Id. at 200, 
    704 S.E.2d 105
     (quoting Hall v.
    Hall, 
    181 Va. 67
    , 76, 
    23 S.E.2d 810
    , 814 (1943)).
    Larry attempts to distinguish Parish from the instant case
    because in Parish, the paralegal who met with the testator
    drafted the will and here, the assistant evaluated the
    testator's capacity and noted her desires but the attorney
    actually drafted the will.   Nothing supports this distinction.
    We have never ruled, nor do we here, that the weight ascribed to
    the testimony of the professional speaking to the testatrix for
    the purpose of drafting the will is lessened if that person does
    not actually draft the will.    Here, Garnett spoke with Dorothy
    regarding the changes to be made to the will.   Garnett
    understood that the purpose of speaking to Dorothy was to assess
    her testamentary capacity.   Garnett testified that she was
    confident Dorothy knew what she was doing and was doing what she
    wanted.   Thus, the trial court erred as a matter of law in
    15
    giving diminished weight to Garnett's testimony because she was
    not the literal "drafter" of the will.
    We also conclude that the court erred in placing undue
    weight on the fact that Dorothy did not place the call to Low's
    office herself.   The fact that she did not place the call is
    clearly outweighed by the fact that she spoke with Garnett and
    clearly expressed her desires as to how she wanted her will
    changed.
    Finally, we hold that the trial court erred in placing more
    weight on the testimony of Dr. Phillips and Dorothy's children
    who were not present when she executed the will than it did on
    the testimony of the witnesses, the notary, and Mary Ann who
    were present when the will was executed.    " '[I]t is the time of
    execution of the will that is the critical time for determining
    testamentary capacity.'    '[T]he testimony of those present at
    the factum - when the will is executed - is entitled to the
    greatest consideration.' "    Parish, 281 Va. at 200, 704 S.E.2d
    at 104 (quoting Thomason v. Carlton, 
    221 Va. 845
    , 853, 
    276 S.E.2d 171
    , 175 (1981)).   " 'Neither sickness nor impaired
    intellect is sufficient, standing alone, to render a will
    invalid.' "   Pace v. Richmond, 
    231 Va. 216
    , 219, 
    343 S.E.2d 59
    ,
    61 (1986)(quoting Tate v. Chumbley, 
    190 Va. 480
    , 495, 
    57 S.E.2d 151
    , 158 (1950)).
    16
    None of the witnesses testified that Dorothy did anything
    that caused them concern.   Indeed, Capobianco testified that she
    would have declined to witness the execution of the will had she
    had any concerns about the proceedings.   Moreover, Dr. Phillips
    testified that Dorothy would have periods of lucidity and
    nothing from the witnesses involved in the drafting and the
    execution of the will indicated that Dorothy was not lucid at
    the time that she executed the contested will.   Indeed, both
    witnesses testified that Dorothy was alert.   Finally, the
    certificate to which the notary affixed her signature stated, in
    relevant part
    [b]efore me, the undersigned authority, on this
    day, personally appeared Dorothy Rose Weedon
    . . . declared to me and to the witnesses in my
    presence that the said instrument is her last
    will and testament and that she had willingly
    signed and executed it in the presence of said
    witnesses as her free and voluntary act . . . .
    Thus, the trial court's decision that Dorothy lacked
    testamentary capacity is based on an incorrect view of the law
    and an improper weighing of the evidence.   Moreover, it is
    without evidence to support it.
    B. Undue Influence
    We have previously held that
    in the will context "a presumption of undue
    influence arises when three elements are
    established: (1) the testator was old when his
    will was established; (2) he named a beneficiary
    who stood in a relationship of confidence or
    17
    dependence; and (3) he previously had expressed
    an intention to make a contrary disposition of
    his property."
    Parish, 281 Va. at 202, 704 S.E.2d at 105-06 (quoting Martin v.
    Phillips, 
    235 Va. 523
    , 527, 
    369 S.E.2d 397
    , 399 (1988)). 4    Undue
    influence must be established by clear and convincing evidence.
    Gibbs v. Gibbs, 
    239 Va. 197
    , 201, 
    387 S.E.2d 499
    , 501 (1990).
    The evidence here proves that Mary Ann, who was the sole
    recipient of all of Dorothy's real property under the contested
    will, had a close relationship with her elderly mother and spent
    a great deal of time with her.   Mary Ann also had power of
    attorney for her mother and had acted in that capacity.      The
    evidence also proves that Dorothy had at least two prior wills
    that expressed contrary dispositions of her property.    Thus, the
    evidence gives rise to the presumption of undue influence, but
    this does not end the inquiry.
    "The undue influence which will vitiate a will
    must be of such a character as to control the
    mind and direct the action of the testator."
    "[I]t must be sufficient to destroy free agency
    on the part of the . . . testator; it must amount
    to coercion – practically duress. It must be
    shown to the satisfaction of the court that the
    party had no free will". "Resistable persuasion,
    solicitation, advice, suggestions, and
    4
    We further held in Parish that the age and contrary
    disposition elements that give rise to the presumption were
    irrelevant in that case as the testator was of a young age when
    he incurred a severe brain injury and he had no money until he
    received compensation for that injury. 281 Va. at 202-03, 704
    S.E.2d at 106.
    18
    importunity do not constitute sufficient evidence
    of undue influence."
    "The burden of showing undue influence
    rests upon those who allege it, and it
    cannot be based upon bare suggestion,
    innuendo, or suspicion."
    Pace, 231 Va. at 224, 343 S.E.2d at 64 (internal quotation marks
    and citations omitted).
    Not all influence is undue in the legal
    sense. See generally T. Atkinson, Law of Wills
    § 55, p. 256, et seq. (2d ed. 1953). "To be
    classed as 'undue', influence must place the
    testator in the attitude of saying: 'It is not my
    will but I must do it.' " Ginter v. Ginter, 
    101 P. 634
    , 636 (Kan. 1909). To support a jury
    verdict of undue influence, the evidence must be
    "sufficient to show that the person executing the
    will was deprived of his volition to dispose of
    his property as he wished. There must be manifest
    irresistible coercion which controls and directs
    the testator's actions." Wilroy v. Halbleib, 
    214 Va. 442
    , 446, 
    201 S.E.2d 598
    , 601 (1974).
    Gill v. Gill, 
    219 Va. 1101
    , 1105-06, 
    254 S.E.2d 122
    , 124 (1979).
    In Gill, Dr. John Russell Gill married Patricia Wing Gill
    in 1957, four years after the death of his first wife.   Id. at
    1103, 254 S.E.2d at 122.   "In 1972, he executed a formal will
    granting [Patricia] a life estate in a trust and the marital
    residence, with remainder to his grandchildren.   [He] died April
    30, 1976 leaving a holographic will dated January 22, 1976
    bequeathing five dollars to each of his two sons by his first
    marriage and the residue of his estate in fee to his widow."
    19
    Id. at 1103, 254 S.E.2d at 122-23 (footnote omitted).    In that
    case, the evidence proved that
    gradually over the course of [the] marriage, Mrs.
    Gill became the dominant spouse, persuading her
    husband to change his fiscal policies, his
    religious affiliation, his work routine, his
    societal views, and his personal habits; that her
    influence increased as his health declined; that
    the holographic instrument was not witnessed the
    day it was dated as Dr. Brown and Markham
    testified; that, indeed, it was not even written
    until later at a time when testator was confined
    to his home, alone with his wife; and that
    testator wrote and pre-dated the instrument, at
    his wife's direction, to give the appearance it
    had been executed in anticipation of surgery.
    Id. at 1105, 254 S.E.2d at 124.    Based on this evidence, a jury
    determined that the January 22, 1976 instrument was not the
    testator's true last will and testament.     Id. at 1103, 254
    S.E.2d at 123.   On appeal, this Court held "as a matter of law
    that the evidence was insufficient to support a finding of undue
    influence" and reversed the circuit court.     Id. at 1107, 254
    S.E.2d at 125.
    "The ultimate burden of proof 'is always upon him who
    alleges fraud.'"   Id. at 1106, 254 S.E.2d at 125 (quoting Wallen
    v. Wallen, 
    107 Va. 131
    , 150, 
    57 S.E. 596
    , 599 (1907)).    Here,
    the trial court focused on the circumstantial evidence that
    raised the presumption of undue influence 5 while overlooking the
    5
    Specifically, the trial court found that "the decedent was
    feeble in mind and body at the time the Will was executed.
    There was obviously a very close, confidential, and fiduciary
    20
    ultimate inquiry: whether Dorothy's will was overridden.
    Although a presumption of undue influence was established, in
    the final analysis the evidence falls short of establishing
    undue influence by clear and convincing evidence.   The evidence
    shows that Dorothy had strained relationships with some of her
    other children and spent more time with Mary Ann than her other
    children.   Even the other children testified that Dorothy was
    protective of and concerned about Mary Ann.   That Billie and
    Lewis claimed that Mary Ann blocked their access to Dorothy's
    doctors is of little consequence as it has nothing to do with
    6
    whether Dorothy executed the 2008 will against her own wishes.
    As to her previously executed wills, no one asserts that Mary
    Ann exerted undue influence over Dorothy when either of those
    wills were drafted even though the first will specifically
    omitted Gloria and the second will omitted Gloria and Billie
    from gifts of real property.   Garnett testified that in 2003 and
    relationship between Mary Ann Weedon and the decedent. Mary Ann
    Weedon had her Power of Attorney and had been her primary
    caretaker, based on the evidence, over the last couple of years.
    And the testator had obviously previously expressed a contrary
    intention in the 2007 Will with regards to the disposition of
    her property."
    6
    Billie's testimony that while visiting Dorothy in the
    hospital, he noticed an abrasion on her head should not be
    afforded undue weight as his observation was clearly removed in
    time from the day that Dorothy executed her 2008 will. He
    stated that Dorothy told him that Mary Ann had shoved her up the
    garage steps because Dorothy was not moving quickly enough.
    However, Dorothy was hospitalized at the time that Billie
    noticed the mark and Billie, indeed, referred to the "abrasion"
    as a scar.
    21
    2007, Dorothy knew what she wanted done and demanded that it be
    done right away.   Importantly, Garnett further testified that
    Dorothy was no different in 2008 when Dorothy decided to draft a
    new will in advance of impending surgery that could, if not
    successful, result in her lapsing into a coma and dying.
    Indeed, as previously stated, Garnett testified that
    Dorothy "knew what she was doing and was doing what she wanted." 7
    This testimony was in clear contrast to that of the siblings who
    testified in generalities that they believed that Mary Ann was
    the reason the will was changed.     Perhaps one of the most
    telling pieces of evidence is the discussion that Dorothy had
    with Nancy when Mary Ann was not present.     On the day before she
    died, Dorothy volunteered that she had changed her will because
    she wanted to leave everything to Mary Ann.
    Similar to the evidence in Gill, testimony that the
    beneficiary of the contested will in this case asked the
    siblings not to visit, was the only sibling who was talking to
    the doctor, and isolated the testator is insufficient to prove
    7
    Though relevant to the issue of testamentary capacity,
    this evidence also has bearing upon undue influence. Much like
    our reliance on the evidence in Gill, that the testator drafted
    the January 22, 1976 will entirely in his own handwriting to
    conclude that it showed "a sedulous act of volition, deliberate
    and independent of external influence[,]" 219 Va. at 1107, 254
    S.E.2d at 125, Garnett's testimony similarly reveals that
    Dorothy, who was "doing what she wanted," was acting of her own
    volition and not as the result of external influence.
    22
    undue influence by clear and convincing evidence.   Although the
    evidence in this case certainly proves that Dorothy was very
    ill, in a great deal of pain, and dying, the contestants did not
    prove by clear and convincing evidence that Dorothy was in the
    position of saying " '[i]t is not my will but I must do it.' "
    Gill, 219 Va. at 1105-06, 254 S.E.2d at 124.   Thus, we conclude
    that the evidence in this case rebuts the presumption of undue
    influence.
    III. CONCLUSION 8
    For the foregoing reasons, we will reverse the judgment of
    trial court and remand with instructions that the 2007 will be
    withdrawn from probate and that the 2008 will be admitted to
    probate.
    Reversed and remanded.
    JUSTICE MIMS, dissenting.
    I believe the circuit court’s finding that Dorothy was
    subjected to undue influence was not plainly wrong and that
    there was evidence to support it.   Therefore I dissent.
    8
    Mary Ann also assigns error to the trial court's admission
    of and the weight given to Dr. Phillip's testimony as well as
    the trial court's failure to rule that the contestants did not
    have sufficient corroborative evidence to support their
    allegations of lack of testamentary capacity and undue
    influence. Because we hold that the trial court erred in
    determining that Dorothy lacked testamentary capacity and that
    she was unduly influenced by Mary Ann, these assignments of
    error are moot and we decline the invitation to address them.
    23
    Upon review of a trial court’s finding of undue influence,
    this Court asks whether that finding was plainly wrong or
    without evidence to support it.    See Parish v. Parish, 
    281 Va. 191
    , 201-02, 
    704 S.E.2d 99
    , 105 (2011) (“where the case has been
    fairly presented and there is credible evidence to support the
    conclusion of the fact-finder, this court will not disturb the
    verdict”) (internal quotation marks omitted); Code § 8.01-680
    (judgment of the circuit court “shall not be set aside unless it
    appears from the evidence that such judgment is plainly wrong or
    without evidence to support it”).
    The inquiry of this Court is whether the record contains
    “credible evidence to support the conclusion” of the circuit
    court.    Id.   In my view, there is such credible evidence to
    support the circuit court’s finding that Dorothy was the victim
    of Mary Ann’s undue influence.
    I agree with the majority that the evidence in this case is
    sufficient, using a clear and convincing standard, to trigger
    the presumption of undue influence pursuant to the factors
    recently set forth in Parish.    See 281 Va. at 202, 704 S.E.2d at
    105-06.    However, the majority concludes that “the evidence
    falls short of establishing undue influence by clear and
    convincing evidence.”    The majority bases this conclusion on its
    view “that [Mary Ann’s] evidence in this case rebuts the
    presumption of undue influence.”
    24
    However, the proper inquiry for this Court, on review of
    the circuit court’s finding of undue influence, is different.
    This Court must determine whether the trial judge was plainly
    wrong when he assessed the credibility of the witnesses and
    weighed their testimony to conclude that Mary Ann failed to
    rebut the presumption of undue influence.
    After the presumption of undue influence arose, “the burden
    of producing evidence tending to rebut the presumption shift[ed]
    to” Mary Ann.   Id. at 203, 704 S.E.2d at 106.   Yet a review of
    Mary Ann’s evidence shows that it was predominantly focused upon
    rebutting the allegation of testamentary incapacity and only
    touched peripherally upon the question of undue influence.
    The majority relies upon four aspects of the evidence to
    conclude that the presumption of undue influence had been
    overcome.   I will examine each in turn.
    First, the majority notes that Dorothy had strained
    relationships with some of her other children and spent more
    time with Mary Ann.   While both of these facts are true, their
    bearing upon the issue of undue influence is not readily
    apparent.   Second, the majority emphasizes that Dorothy was
    protective of and concerned about Mary Ann.   Likewise, this is
    true, but it does not adequately explain why Dorothy, mere days
    before her death and with reduced mental capacity, would make a
    25
    dramatic alteration of her testamentary wishes for Mary Ann’s
    benefit.
    The majority assigns importance to Garnett’s testimony that
    “in 2003 and 2007, Dorothy knew what she wanted done and
    demanded that it be done right away [and she] was no different
    in 2008.”   This evidence may be more relevant to capacity than
    undue influence.   In fact, it may bolster the undue influence
    presumption rather than refute it, because in both 2003 and 2007
    there was a precipitating causal event that angered Dorothy that
    was not present in 2008.   In 2003, Dorothy disinherited Gloria
    after Gloria told the church minister that Dorothy was ill.     In
    2007, Dorothy disinherited Billie after a confrontation in her
    trailer regarding Gloria being with the family for Christmas.
    Finally, the majority relies upon Nancy’s testimony that
    Dorothy volunteered that she wanted to leave everything to Mary
    Ann.   While not doubting the veracity of this statement, one
    must question whether it is an expression of her free will or
    further evidence of the pervasiveness of the undue influence.     I
    would not disturb the conclusion of the trial judge, who saw and
    heard all the witnesses, determined their credibility, and
    weighed their testimony.   See Mastin v. Theirjung, 
    238 Va. 434
    ,
    438-39, 
    384 S.E.2d 86
    , 88 (1989) (finder of fact is “sole
    judge[] of the weight and credibility of the evidence”).
    26
    The record is replete with additional testimony regarding
    Mary Ann’s unusual and domineering relationship with Dorothy,
    especially in the final sad weeks of Dorothy’s life.   Lewis
    characterized that relationship as Dorothy being afraid of Mary
    Ann “get[ting] mad” and “throwing a fit on her.”   Most
    tellingly, Mary Ann spent approximately 12 hours per day alone
    with her in the hospital and limited her siblings’ access to
    their mother. In the hospital, Dorothy was confused as to the
    identities of her children and grandchildren and was curled up
    in a fetal position much of the day, reluctant to contravene
    Mary Ann’s wishes.
    Billie testified that during one of his visits to the
    hospital, he asked Dorothy about an abrasion on her head.
    Dorothy told him that Mary Ann shoved her up the garage steps at
    Mary Ann’s house, and that she fell into a wall.   Billie also
    testified that Mary Ann used her power of attorney to block her
    siblings’ access to Dorothy’s doctors.   Lewis testified that
    Mary Ann threatened to have him “locked up” for visiting his
    mother in the hospital.   He testified that on another occasion,
    he spoke with his mother on the phone about visiting, but that
    she called back a few minutes later and, with Mary Ann in the
    background commanding her to cancel the visit, submitted to Mary
    Ann’s demand.
    27
    In light of this evidence, the trial judge reasonably could
    give less credibility to the testimony of Mary Ann, who at trial
    was the sole witness regarding what transpired when Dorothy
    decided to draft a new will.    For these reasons, I believe we
    should defer to the circuit court and I cannot conclude that its
    finding of undue influence was plainly wrong or without evidence
    to support it.
    For these reasons I dissent.
    JUSTICE MCCLANAHAN, dissenting.
    Regarding the issue of undue influence, I agree with
    Justice Mims.    However, because I would affirm the trial court
    on the issue of testamentary capacity, it is not necessary to
    address the issue of undue influence, and therefore I dissent
    separately.
    “A trial court sitting without a jury is the judge of the
    weight of the testimony and the credibility of the witnesses.”
    Government Emples. Ins. Co. v. United Servs. Auto. Ass’n, 
    281 Va. 647
    , 655, 
    708 S.E.2d 877
    , 882 (2011).    “Nevertheless,
    ‘[t]here must be some evidence in order to support the
    verdict.’ ”     Id. (quoting Barnes v. Hampton, 
    149 Va. 740
    , 744,
    
    141 S.E. 836
    , 837 (1928)).    In the instant case, on the issue of
    testamentary capacity, if one gives more credence and weight to
    the testimony of the medical examiner and the siblings, the
    28
    conclusion reached by the trial court follows.   On the other
    hand, if more credence and weight is given to the testimony of
    Mary Ann, the social worker and the patient representatives, one
    may come to the conclusion reached by the majority in this case.
    It is not the appellate function, however, to engage in such
    reweighing.
    "To overcome the presumption of [testamentary] capacity, we
    do not require clear and convincing proof; rather 'the
    contestants need only go forward with evidence sufficient to
    rebut the presumption.' "   Parish v. Parish, 
    281 Va. 191
    , 199,
    
    704 S.E.2d 99
    , 104 (2011) (quoting Gibbs v. Gibbs, 
    239 Va. 197
    ,
    201, 
    387 S.E.2d 499
    , 501 (1990)).    Here, there were facts before
    the circuit court sufficient to rebut the presumption, and I
    would not substitute my judgment on the credibility of witnesses
    and the weight accorded their testimony.   See Commonwealth v.
    Jackson, 
    276 Va. 184
    , 197, 
    661 S.E.2d 810
    , 816 (2008) (" '[T]he
    credibility of witnesses and the weight accorded their testimony
    are matters solely for the fact finder who has the opportunity
    of seeing and hearing the witnesses.’ ” (quoting Schneider v.
    Commonwealth, 
    230 Va. 379
    , 382, 
    337 S.E.2d 735
    , 736-37 (1985)).
    29