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
