The Supreme Court of Virginia recently took up the appeal of a son, David, who challenged the testamentary capacity of his father, Eugene, to make a 2002 will. Eugene had been found in need of a conservator in three different states, including Virginia, since Eugene suffered a head and spinal cord injury after being hit with a metal pipe at a bar in 1982. At the time, his son David was an infant.
David challenged the 2002 will. The will left 25% of Eugene’s estate to Eugene’s brother and 25% to Eugene’s sister-in-law. Eugene’s brother and sister-in-law had become Eugene’s court-appointed conservators after filing a petition with a court in Tennessee in 2000. Without the will, Eugene’s entire estate would have passed to his son, David.
The Supreme Court of Virginia affirmed the Virginia trial court by upholding the will that left Eugene’s brother and sister-in-law with a total of 50% of Eugene’s estate. The Supreme Court noted that the proponent of a will bears the burden of proving the existence of testamentary capacity by a preponderance of evidence, not by a higher “clear and convincing evidence” standard. The trial judge had found that Eugene had sufficient testamentary intent and was not subject to undue influence in making the will.
Eugene’s will was upheld despite the fact that Eugene was under a conservatorship at the time because he had a mental or physical incapacity and even though Eugene’s brother served as Eugene’s “translator” during the drafting of the will since Eugene spoke through a “voice box due to a tracheotomy.” The Court cited past precedent for the proposition that “the mere fact that one is under a guardianship does not deprive him of the power to make a will.” The “condition of being unable, by reason of weakness of mind, to manage and care for an estate, is not inconsistent with capacity to make a will.” What about the conservatorship proceedings? The Court held that none of the conservatorship statutes “required a specific factual finding that Eugene was incompetent to such an extent that he could not execute a will....” The case is Parish v. Parish (Va. 2011).