PRESENT: All the Justices

MARION CASEY DEAN, CO-EXECUTOR AND
CO-TRUSTEE, ET AL.
                                             OPINION BY
v.    Record No. 131512                JUSTICE CLEO E. POWELL
                                           April 17, 2014
BARBARA MORRIS, ET AL.

              FROM THE CIRCUIT COURT OF ORANGE COUNTY
                 Joanne F. Alper, Judge Pro Tempore

      This appeal arises out of breach of contract suit brought

against the estate of Marion Casey Dean (“Casey”).    In this

case, we hold that the trial court’s finding that an oral

contract existed between Casey and his wife, Shirley Gregg Dean

(“Shirley”), is without clear and convincing evidence to support

it.   Therefore, we will reverse the judgment of the trial court.

                     I.   FACTS AND PROCEEDINGS

      Shirley married Casey on July 1, 1978.   Both had children

from their previous marriages.   When Shirley and Casey married,

they initially lived in Shirley’s townhouse until it became too

small, at which time they sold it and used the proceeds to

purchase a larger townhome in the same community.    After Casey

sold his business to his son, Marion Casey Dean, Jr. (“Dean”),

Casey and Shirley sold the townhome, remodeled Casey’s farmhouse

in Orange County, and moved there.

      Shirley died in August 1999.    At the time, Barbara E.

Morris (“Morris”), Linda D. Gregg (“Gregg”), and Joanne Sundell

decided not to probate their mother’s estate.     Their decision

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was based on their belief that their mother had an oral contract

with Casey for him to provide for them in his will.     Morris

claimed that she and her sisters remained close to Casey after

their mother died.

        After Casey’s death in 2010, Morris and her sisters

unsuccessfully attempted to get Casey’s estate documents from

Dean.    When Morris contacted the estate’s attorney, she was told

that she should have her attorney contact him.     Morris then

hired an attorney.    Subsequently, the sisters reported receiving

a check for $200,000 accompanied by a release.     Morris indicated

that they did not cash it because they still had not seen any of

the estate paperwork.

        The sisters then sued Casey’s estate for breach of an oral

contract between him and their mother.     At trial, Morris

testified that she and her mother had discussed her mother’s

estate planning desires.     Specifically, Morris testified that in

1996 because of her ailing mother’s upcoming surgery, Shirley

told Morris that “Casey and I have discussed . . . asking you

all to wait until after something happens to him, before you all

inherit anything from me, before you get anything from the

estate.”    Morris stated that Shirley told her that she and Casey

had agreed that Morris and her sisters would inherit more if

they waited until after Casey’s death.     Morris further testified

that in May 1997, Shirley “mention[ed] something about the

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widow’s third.”

        Morris also testified about a conversation that she had

with Casey approximately a week and a half after her mother

died.    She stated that Casey spoke privately with her and showed

her a document that she did not read.     Casey told her that the

document, which he kept in the safe, would not mean much to her

then but that it would after he died, and that he was showing

her because he wanted to be sure that his wishes regarding his

estate were followed.

        On cross-examination, Morris admitted that her mother did

not tell her how much they would inherit if they waited and that

Casey never told her not to probate her mother’s will.     She also

admitted that her mother gave her a copy of her will around the

same time that she had the conversation about her agreement with

Casey.

        Gregg testified that in December 1996 she spoke with her

mother, who told her that she and Casey had made an agreement

for her daughters to wait to inherit until after he died.

        Frank Andrew Thomas, III, an attorney who previously

represented Casey, testified as to several letters he wrote to

Casey regarding estate work he did for Casey and a note in his

file memorializing a meeting with Casey and Dean.     In one letter

dated December 31, 1996, Thomas wrote “I note that your current

trust has a one third - two thirds division of assets between

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your family and your wife’s family.   The irrevocable trust I

have drafted contemplates its asset will be distributed only to

your family.   A modification can easily be made.”   Approximately

one month later, Thomas wrote,

          [e]nclosed with this letter please find a
          new draft of your irrevocable trust
          incorporating the amendments we discussed by
          telephone. It now follows essentially the
          same scheme as your existing trust for the
          distribution of assets after your death.

In a letter dated October 18, 1999, Thomas wrote

               I want to go back over with you in this
          letter our discussions and plans regarding
          the administration of your wife’s estate.
          Based on what you told me, I do not think
          there is anything that is needed to be done
          to administer your wife’s estate. It appears
          that what property you have together was
          joint and there was nothing in her name
          alone that requires the probate of her Will
          or qualification of an Executor. Should
          that turn out not to be the case, we can
          arrange for you to do so in a fairly simple
          fashion.



     The trial court held that Morris “carried [the] burden of

clear and convincing evidence to prove that there was such an

agreement that [Shirley’s] children be entitled to a third of

the estate.”   This appeal follows.

                           II.   ANALYSIS

     Dean argues that the trial court erred in finding clear and

convincing evidence of an oral contract between Casey and


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Shirley to leave one-third of Casey’s estate to Shirley’s

children if Shirley predeceased Casey.    To prove a breach of an

oral contract, Morris must first prove that a valid oral

contract existed.   To prove a contract’s existence, all of the

essential elements must be proven.    “[T]here must be a complete

agreement which requires acceptance of an offer, as well as

valuable consideration.”    Montagna v. Holiday Inns, Inc., 221

Va. 336, 346, 269 S.E.2d 838, 844 (1980)(citation omitted).

     In reviewing the trial court’s finding that clear and

convincing evidence of the contract existed, “[w]e must ‘accept

with caution and examine with scrutiny’ the evidence proffered

by [the proponent] in support of an alleged oral contract

providing for the disposition of the decedent’s estate contrary

to the directions of [his] probated will.”   Blincoe v. Blincoe,

209 Va. 238, 244, 163 S.E.2d 139, 143 (1968) (citation omitted).

Only if the proponent has sustained her burden of putting on

“clear, definite and convincing evidence that with reasonable

certainty established the making of the contract and proved its

terms,” will we affirm the trial court’s determination that an

oral contract existed.     Id.

     To determine whether the trial court correctly held that

there was an oral contract between Shirley and Casey, we first

look to whether there was an agreement.   In reviewing a trial

court’s determination that an oral contract existed, we review

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the record for clear and convincing evidence, i.e., proof that

is more than a mere preponderance but less than beyond a

reasonable doubt.    Fred C. Walker Agency, Inc. v. Lucas, 215 Va.

535, 540-41, 211 S.E.2d 88, 92 (1975).

                  “In testing the credibility and weight
             to be ascribed to the evidence, we must give
             trial courts and juries the wide discretion
             to which a living record, as distinguished
             from a printed record, logically entitles
             them. The living record contains many
             guideposts to the truth which are not in the
             printed record; not having seen [the
             witnesses] ourselves, we should give great
             weight to the conclusions of those who have
             seen and heard them.”

Id. at 541, 211 S.E.2d at 93 (quoting Bradley v. Commonwealth,

196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955)).

     Gregg testified without objection that there was an

agreement between her mother and Casey.    Morris further

testified that her mother believed that there was an agreement

between herself and Casey.    Thus, upon review, the record

contains clear and convincing evidence to support the trial

court’s determination that an agreement existed.

     Simply because the evidence is clear and convincing to

prove that an oral agreement existed, however, does not mean

that the evidence is sufficient to prove the terms of that

agreement.    Without specificity of terms, there is no contract.

Indeed,



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[i]n Mullins v. Mingo Lime [& Lumber] Co.,
176 Va. 44, 49, 10 S.E.2d 492 [(1940)], we
[explained] as follows: “It is a necessary
requirement in the nature of things that an
agreement in order to be binding must be
sufficiently definite to enable a court to
give it an exact meaning.”

                   . . . .

“Another essential element of a valid
contract is certainty and completeness. The
element of completeness denotes that the
contract embraces all the material terms;
that of certainty denotes that each one of
those terms is expressed in a sufficiently
exact and definite manner. An incomplete
contract, therefore, is one from which one
or more material terms have been entirely
omitted. An uncertain contract is one which
may, indeed, embrace all the material terms,
but one of them is expressed in so inexact,
indefinite or obscure language that the
intent of the parties cannot be sufficiently
ascertained to enable the court to carry it
into effect.”

“While a contract to be valid and
enforceable must be so certain that each
party may have an action upon it, reasonable
certainty is all that is required. So where
a contract is to some extent uncertain and
ambiguous, it may be read in the light of
surrounding circumstances, and if, reading
it thus, its meaning may be gathered, the
same will be enforced. But an agreement, in
order to be binding, must be sufficiently
definite to enable a court to give it an
exact meaning, and must obligate the
contracting parties to matters definitely
ascertained or ascertainable.”

                   . . . .

“In order that there may be an agreement,
the parties must have a distinct intention
common to both and without doubt or

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          difference. Until all understand alike,
          there can be no assent, and, therefore, no
          contract. Both parties must assent to the
          same thing in the same sense, and their
          minds must meet as to all the terms. If any
          portion of the proposed terms is not
          settled, or no mode is agreed on by which it
          may be settled, there is no agreement,
          . . . .”

Smith v. Farrell, 199 Va. 121, 127-28, 98 S.E.2d 3, 7-8

(1957)(citations omitted).

     In fact, in a prior case considering an oral contract as to

how to dispose of an estate, this Court reversed the trial

court’s determination that there was sufficient evidence to

prove the essential terms of an oral contract.   Blincoe, 209 Va.

at 244-45, 163 S.E.2d at 144.   The record in that case contained

clear and convincing evidence that the defendant promised to

compensate the plaintiff but fell short of proving by clear and

convincing evidence “that there was [a] meeting of the minds

respecting essential terms--the amount to be paid or bequeathed

by [the defendant] and the persons to whom the payment or

bequest would be made.”   Id.

     Here, although Thomas’ letters to Casey tend to indicate

that Casey initially intended before and around the time of

Shirley’s death to leave one-third of the trust assets to her

daughters and two-thirds to his own children, these letters are

not clear and convincing evidence of the terms of the agreement.

Indeed, although the trial court found there was sufficient

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evidence that the daughters were entitled to “one-third of the

estate,” its very ruling indicates that the agreement was not

sufficient as to the terms.   Specifically, during the liability

portion of the bifurcated trial, the trial court stated:

           I think . . . that the plaintiff has carried
           its burden of clear and convincing evidence
           to prove that there was such an agreement
           that [Shirley’s] children be entitled to a
           third of the estate.

           The question that hasn’t been answered yet
           is: What is the estate? And I think that’s
           . . . the next issue. Was it a third of
           what was put in that trust, which
           vacillated, and maybe nothing? Was it a
           third of his entire estate, regardless of
           the provisions of the trust? I’m not sure
           we have the answer to that.

(Emphasis added.)

     The trial court’s uncertainty is borne out by the documents

themselves.   In 1996, Casey drafted a will and accompanying

trust.   That will left all of his tangible personal property to

his children and left the “residuary estate” to be passed

through the trust, which was to be divided two-thirds to his

children and one-third to Shirley’s children.   The trust itself

was unfunded at that time.    Therefore, clearly in 1996, when

Shirley told her children about the agreement, there was no

evidence of an agreement that they would receive one-third of

the estate because certain items had been specifically devised

to Casey’s children.


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     The fact that there was no evidence of a specific agreement

as to terms is also borne out by the fact that even during

Shirley’s lifetime, the assets shuffled.    In 1997, three parcels

of property were placed into the previously unfunded revocable

trust.

     Adding to the confusion as to what corpus Shirley’s

children would receive one-third of is the fact that an

irrevocable trust was also established.    That trust was

originally drafted by Thomas to pass all of its assets to

Casey’s children.   It appears from correspondence that this

trust was later drafted to provide a one-third/two-thirds

division but this trust was funded with only $1.

     However, any evidence about a one-third/two-thirds division

simply sheds light on what Casey may have been thinking when he

initially drafted his trusts. *   It does not provide any evidence

that Shirley and Casey agreed with each other that there would

be a one-third/two-thirds division.    There simply is not clear

and convincing evidence of what Shirley meant by “more.”

Indeed, Morris admitted on cross-examination that her mother


     *
       The trial court considered Casey’s actions to initially
give one-third of the revocable trust to Shirley’s children as
corroboration of what Shirley and he intended to leave to
Shirley’s children. His actions, however, only shed light as to
his intent. They provide no evidence as to what Shirley thought
that the agreement was and therefore cannot be considered clear
and convincing evidence of the terms of the agreement between
Shirley and Casey.
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never told her that Casey would divide his estate such that one-

third went to her and her sisters and two-thirds went to his

children, and Gregg indicated that her mother never discussed a

one-third “widow’s share” with her.    Therefore, the evidence of

a statement referring to a “widow’s third” even when combined

with Casey’s actions does not establish an agreement between

Casey and Shirley that her children would receive one-third of

the estate.   Thus, as in Blincoe, it cannot be said that there

is clear and convincing evidence of the specific terms of what

Casey and Shirley contracted to leave to Shirley’s children and,

as such, the trial court’s decision is without sufficient

evidence to support it.   See Code § 8.01-680.

                          III.   CONCLUSION

     Because the record lacks clear and convincing evidence as

to the terms of the agreement between Casey and Shirley, we will

reverse the judgment of the trial court holding that a contract

existed between Shirley and Casey.     We will also vacate the

damages awarded to Morris.

                                        Reversed and final judgment.




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