           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2016 Term
                                  _______________                             FILED
                                     No. 15-0726                          October 6, 2016
                                                                              released at 3:00 p.m.
                                   _______________                          RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
                               RUSSELL W. MASON,

                        Executor of the Estate of Christine Ebert,

                                        Petitioner


                                            v.

                             CHRISTINE TORRELLAS,

                Ancillary Administratrix of the Estate of Christine Ebert,

                                      Respondent


       ____________________________________________________________

                    Appeal from the Circuit Court of Mineral County

                           The Honorable Phil Jordan, Judge

                               Civil Action No. 15-C-9


                        REVERSED AND REMANDED

       ____________________________________________________________

                             Submitted: September 21, 2016

                                Filed: October 6, 2016


Daniel R. James, Esq.                            Charles F. Johns, Esq.
Nicholas T. James, Esq.                          Denielle M. Stritch, Esq.
Keyser, West Virginia                            Steptoe & Johnson PLLC
Counsel for the Petitioner                       Bridgeport, West Virginia
                                                 Counsel for the Respondent



CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



              1.     “‘The trial court, in appraising the sufficiency of a complaint on a

Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).”

Syllabus Point 3, Chapman v. Kane Transfer Co. Inc., 160 W.Va. 530, 236 S.E.2d 207

(1977).



              2.     “Under Section 1, Article IV of the Constitution of the United States,

the judgment or decree of a court of record of another state will be given full faith and

credit in the courts of this State, unless it be clearly shown by pleading and proof that the

court of such other state was without jurisdiction to render the same, or that it was

procured through fraud.” Syllabus Point 1, in part, Clark v. Rockwell, 190 W.Va. 49, 435

S.E.2d 664 (1993).



              3.      “A sentence of probate made in another state upon a will is not

evidence in the courts of this state of the validity and due execution of the will, as to

lands situate in this state, devised by it, so as to pass title to such land to the devisee.”

Syllabus Point 3, Thrasher v. Ballard, 33 W.Va. 285, 10 S.E. 411 (1889).
Chief Justice Ketchum:


              This case concerns a will contest in which the decedent, Christine Ebert,

executed two wills: the first in West Virginia in 2012, and the second in New York in

2014, ten days before she died of, among other causes, dementia. Petitioner Russell

Mason (“Plaintiff Mason”), the named executor of the West Virginia will, filed a

complaint in the Circuit Court of Mineral County challenging the validity of the New

York will. Respondent Christine Torrellas (“Defendant Torrellas”), the executrix of the

New York will, filed a motion to dismiss Plaintiff Mason’s complaint, arguing that the

West Virginia circuit court lacked jurisdiction over this matter. The circuit court granted

Defendant Torrellas’ motion to dismiss. Following entry of this order, Plaintiff Mason

filed the present appeal.

              After review, we reverse the circuit court’s order dismissing Plaintiff

Mason’s complaint and remand this matter to the circuit court for further proceedings

consistent with this opinion.



                                            I.


                  FACTUAL AND PROCEDURAL BACKGROUND


              The decedent, Mrs. Ebert, was born in 1928, and, according to Plaintiff

Mason, lived the majority of her life in West Virginia. Mrs. Ebert did not have any

children and was predeceased by her husband. She had three siblings, including a sister,



                                            1

Irene Ketelsen, who lived in New York. The decedent owned real estate in West Virginia

and Florida.

               In November 2012, the decedent executed her last will and testament in

Keyser, West Virginia (“West Virginia will”).           Plaintiff Mason was named as the

executor of this will.     Pursuant to the West Virginia will, the decedent made the

following bequests: 1) $3,000.00 to the United Methodist Church in Hartsmansville,

West Virginia; 2) $2,000.00 for the care of her gravesite and her husband’s gravesite to

the Idleman Cemetery in Grant County, West Virginia; 3) a car lot located in Keyser,

West Virginia, farm machinery, and West Virginia bonds to Plaintiff Mason; 4) a house

located in Keyser, West Virginia to Sue Heavener; and 5) her household contents, Florida

real estate, and residue of the estate to her sister, Irene Ketelsen.

               According to Plaintiff Mason’s complaint, the decedent “has continuously

resided in Mineral County, West Virginia and . . . was a domiciliary of the State of West

Virginia.” While the decedent was a West Virginia resident, Plaintiff Mason asserts that

she visited her sister, Irene Ketelsen, in New York every year between Thanksgiving and

Christmas. After these New York holiday visits, the decedent would go to Florida for the

winter before returning to her West Virginia home.

               Plaintiff Mason’s complaint alleges that the decedent became ill while

visiting her sister in New York in December 2013. Due to this illness, the decedent, who

was eighty-six years old, was hospitalized at Winthrop University Hospital in New York.

Plaintiff Mason alleges that while the decedent was suffering from multiple illnesses in


                                               2

the New York hospital, including dementia, she executed a second will (“New York

will”) on January 30, 2014.

              The appendix-record contains the West Virginia will and the New York

will. Mrs. Ebert’s signature is markedly different in the two wills. In the West Virginia

will, her signature is written in clearly legible cursive writing in which she spells out her

full name, Christine Ebert. In the New York will, the alleged signature is illegible and

does not bear any resemblance to her signature contained in the 2012 West Virginia will.

The two signature pages, (1) West Virginia, (2) New York, are as follows:




              The New York will states that the decedent is “a resident of and domiciled

in the County of Nassau, State of New York.” The New York will revoked her previous

West Virginia will, and named Defendant Christine Torrellas as the executrix of the New

                                             3

York will.   Defendant Torrellas is the decedent’s niece, and is the daughter of the

decedent’s sister, Irene Ketelsen. Per the New York will, the decedent bequeathed her

entire estate to her sister, Irene Ketelsen. The New York will names Defendant Torrellas

as the residuary beneficiary of the estate if Irene Ketelsen predeceased the decedent.

              The decedent died ten days after the New York will was executed. The

decedent’s New York State death certificate lists her residence as Keyser, West Virginia,

her mailing address as “Route 1 . . . Elk Garden [West Virginia],” and states that her

place of burial will be in Scherr, West Virginia. The death certificate lists the following

causes of death: “respiratory failure, pneumonia aspiration, dementia, and polycystic

kidney [sic].” (Emphasis added). Following her death, the decedent was buried next to

her husband in a cemetery in Scherr, West Virginia.

              Defendant Torrellas offered the New York will for probate in a New York

surrogate court on April 14, 2014. The New York surrogate court entered a final decree

to probate the New York will in June 2014. Plaintiff Mason was not given “constructive

or formal notice” of the New York will administration, and asserts that as a beneficiary of

a prior will, he was entitled to such notice under the rules of the New York surrogate

court.

              After the New York surrogate court entered its final decree of probate,

Defendant Torrellas began the process to admit the will for ex parte ancillary probate

before the Mineral County Commission in West Virginia.             According to Plaintiff

Mason’s complaint, the New York will was “admitted in an ancillary estate


                                             4

administration before the Mineral County Commission on July 24, 2014.”1 Thereafter,

Plaintiff Mason filed the present complaint in the circuit court of Mineral County on

February 24, 2015.

              Plaintiff Mason’s complaint alleges that Defendant Torrellas 1) “procured

the making and execution of the New York will knowing that [the decedent] lacked the

requisite testamentary capacity”; 2) “misled [the decedent] into executing the New York

will, thereby committing fraud”; and 3) exerted undue influence over the decedent, who

“was not acting of her own free will,” when the New York will was executed.2

              In response to Plaintiff Mason’s complaint, Defendant Torrellas filed a

motion to dismiss pursuant to Rules 12(b)(1) and (6) of the West Virginia Rules of Civil

Procedure.3 Defendant Torrellas argued that the West Virginia circuit court did not have




       1
         During the hearing on the motion to dismiss, counsel for Defendant Torrellas
stated, “We started the probate in this State [West Virginia] after the New York will was
filed, got three quarters of the way through the process when it stopped because this suit
was filed here in West Virginia. So, it’s now on hold with the Probate Court here [.]” In
her brief to this Court, Defendant Torrellas states that the ancillary probate proceedings
before the Mineral County Commission are complete.
       2
          Plaintiff Mason’s complaint asserts that because of her physical and mental
infirmities in December 2013, the decedent was unable to make decisions about her
financial affairs. The decedent purportedly named her niece, Defendant Torrellas, as her
power of attorney in New York, revoking a prior power of attorney naming Plaintiff
Mason.
       3
         Rule 12(b)(1) and (6) of the West Virginia Rules of Civil Procedure are as
follows: “Every defense, in law or fact, to a claim for relief in any pleading, whether a
claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive
                                                                            (continued . . .)

                                             5

jurisdiction over this matter, asserting that because the New York surrogate court had

entered a final decree of probate regarding the New York will, the West Virginia circuit

court had to give that final decree “full faith and credit, and thereby prevent [Mr.

Mason’s] challenge to the validity of the NY will anywhere but in New York.”

Defendant Torrellas’ motion to dismiss alternatively argued that even if the West

Virginia circuit court had jurisdiction over this matter, Plaintiff Mason failed to plead

sufficient facts to show the probate of the New York will was improper.

              The circuit court held a hearing on the motion to dismiss on June 16, 2015.

At the conclusion of this hearing, the circuit judge granted Defendant Torrellas’ motion

to dismiss orally, stating “Court’s going to grant the motion to dismiss, I think this has to

be sorted out in New York Court.” On June 24, 2015, the circuit court entered a three-

sentence order granting Defendant Torrellas’ motion to dismiss:

                     On the 16th day of June 2015 CAME the Defendant, by
              counsel, pursuant to Rule 12(b)(6) of the West Virginia Rules
              of Civil Procedure, and moved the Court to dismiss this case.
              Upon review of the briefing and oral arguments of both
              parties, by counsel, this Court finds that, for the reasons set
              forth in Defendant’s Motion, and for such other and further
              reasons as are apparent to the Court, Defendant’s Motion to
              Dismiss is hereby GRANTED. It is, therefore, ORDERED
              that Plaintiff’s claims against Defendant be DISMISSED




pleading thereto if one is required, except that the following defenses may at the option of
the pleader be made by motion: (1) lack of jurisdiction over the subject matter, . . . (6)
failure to state a claim upon which relief can be granted.”



                                             6

              WITH PREJUDICE and STRICKEN from the Court’s
              docket.

              After entry of the circuit court’s order granting Defendant Torrellas’ motion

to dismiss, Plaintiff Mason filed the instant appeal.




                                             II.


                               STANDARD OF REVIEW


              This Court has explained that “[t]he purpose of a motion under Rule

12(b)(6) is to test the formal sufficiency of the complaint.” Collia v. McJunkin, 178

W.Va. 158, 159, 358 S.E.2d 242, 243 (1987) (citations omitted). “The trial court, in

appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss

the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45­

46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syllabus Point 3, Chapman v. Kane Transfer Co.

Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). “For purposes of the motion to dismiss, the

complaint is construed in the light most favorable to plaintiff, and its allegations are to be

taken as true. . . . The policy of the rule is thus to decide cases upon their merits, and if

the complaint states a claim upon which relief can be granted under any legal theory, a

motion under Rule 12(b)(6) must be denied.” John W. Lodge Distrib. Co. v. Texaco, Inc.,

161 W.Va. 603, 605, 245 S.E.2d 157, 158-59 (1978). This Court has also held that

“[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is

                                              7

de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc.,

194 W.Va. 770, 461 S.E.2d 516 (1995).




                                           III.


                                       ANALYSIS


              On appeal, Plaintiff Mason argues that the circuit court erred by granting

Defendant Torrellas’ Rule 12(b)(6) motion to dismiss. Plaintiff Mason asserts that the

decedent was a West Virginia resident who owned property in West Virginia. Because

the decedent was a West Virginia resident at the time of her death, who devised real

estate located in West Virginia, Plaintiff Mason argues the circuit court of Mineral

County has jurisdiction over this matter. By contrast, Defendant Torrellas argues that the

decedent was a New York resident who executed a will in the State of New York.

Therefore, according to Defendant Torrellas, the circuit court correctly determined that it

was “obligated to give full faith and credit to the New York probate court, which had

already decided the NY will was valid.” Defendant Torrellas also argues that even if

review of the New York will was proper in West Virginia, Plaintiff Mason’s challenge to

the New York will did not comply with W.Va. Code § 41-5-13 [1993], our statute setting

forth the process for probating a foreign will. Finally, Defendant Torrellas argues that

even if the West Virginia circuit court has jurisdiction, Plaintiff Mason failed to plead


                                            8

sufficient facts to show the probate of the New York will was improper. We address

each argument in turn.

                                   A. Jurisdiction

              The circuit court granted the motion to dismiss, concluding only that it

lacked jurisdiction because “this has to be sorted out in New York Court.” Defendant

Torrellas argues that this ruling was proper because the West Virginia circuit court was

“obligated to give full faith and credit to the New York probate court, which had already

decided the NY will was valid.” Defendant Torrellas states that “the full faith and credit

clause of the United States Constitution precludes [the West Virginia circuit court] from

proceeding with a contest of the Probated NY Will.”

              This Court addressed the full faith and credit clause in Clark v. Rockwell,

190 W.Va. 49, 50-51, 435 S.E.2d 664, 665-66 (1993), stating, “In our interpretation of

the Full Faith and Credit Clause found in Section 1 of Article IV of the United States

Constitution, we have followed applicable United States Supreme Court cases.”4 Further,

this Court described the circumstances in which it would give full faith and credit to the

judgment of a court in another state in Syllabus Point 1, in part, of Clark:




       4
         Section 1 of Article IV of the United States Constitution provides: “Full Faith
and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.”



                                              9

                     Under Section 1, Article IV of the Constitution of the
              United States, the judgment or decree of a court of record of
              another state will be given full faith and credit in the courts of
              this State, unless it be clearly shown by pleading and proof
              that the court of such other state was without jurisdiction
              to render the same, or that it was procured through fraud.

(Emphasis added). See also Gardener v. Gardner, 144 W.Va. 630, 639, 110 S.E.2d 495,

500-01 (1959) (“Under the provisions of the United States Constitution, Article IV,

Section 1, the courts of this State are not required to accord full faith and credit to a

judgment or decree of a court of another state, if such judgment or decree was procured

by fraud, or if the court by which it was rendered lacked jurisdiction of the person or the

subject matter. A judgment or decree rendered by a court of a sister state under such

circumstances may be attacked collaterally in the courts of this State.”).

              In the present case, Plaintiff Mason’s complaint alleges 1) that Defendant

Torrellas procured the judgment of the New York court through fraud, and 2) that the

New York court was without jurisdiction.           Specifically, the complaint states that

Defendant Torrellas had actual knowledge that the decedent was domiciled in West

Virginia, but “fraudulently represented to the [New York] Surrogate Court that Ms. Ebert

died domiciled in the State of New York, and further fraudulently failed to identify the

Plaintiff as a person who has an interest in Ms. Ebert’s estate.”            Because Plaintiff

Mason’s complaint alleges that the decedent was not domiciled in or a resident of New

York, he has alleged that the New York court did not have proper jurisdiction. Plaintiff

Mason’s complaint also asserts that Defendant Torrellas’ New York petition for probate



                                             10

fraudulently represented that “the NY will did not revoke any prior will, nor did

Defendant [Torrellas] list the Plaintiff as a person affected by the NY will.”

              Under Syllabus Point 1 of Clark, a party attempting to collaterally attack

the judgment from a court in another state is required to demonstrate by “pleading and

proof” that such judgment was “procured through fraud.” However, in the present case,

Plaintiff Mason has not had the opportunity to conduct discovery and establish “proof”

that the New York judgment was procured through fraud. Instead, the circuit court

dismissed Plaintiff Mason’s case pursuant to a motion to dismiss based only on the

allegations contained in his complaint. Because Plaintiff Mason’s complaint clearly

asserts that the judgment of the New York court was procured through fraud, and that the

New York court was without jurisdiction, we reject Defendant Torrellas’ argument that

the full faith and credit clause precludes the West Virginia circuit court from proceeding

with this case.

              Next, Defendant Torrellas argues that the West Virginia circuit court lacked

jurisdiction because the decedent was domiciled in New York and her will had already

been probated by a New York court. Defendant Torrellas’ motion to dismiss states,

“even taking all the facts outlined in Mason’s Complaint as true, [the decedent’s]

domicile was New York because she moved there with the intent to make it her

domicile.” Because the decedent was domiciled in New York, according to Defendant

Torrellas, the West Virginia circuit court had no authority to set aside the will for alleged

fraud. In support of this argument, Defendant Torrellas relies on Syllabus Point 1 of


                                             11

Woofter v. Matz, 71 W.Va. 63, 76 S.E. 131 (1912), which held, in relevant part: “In this

state equity has no general jurisdiction, nor jurisdiction given by statute, to set aside a

will and the probate thereof, for alleged fraud in the procurement thereof, of one

domiciled in another state, duly probated there, and subsequently duly admitted to

probate in this state[.]” (Emphasis added). Defendant Torrellas argues that because the

decedent was domiciled in New York, our holding in Woofter prevents Plaintiff Mason

from challenging the validity of the New York will in a West Virginia court.

              Defendant Torrellas’ argument is predicated on her contention that the

decedent was domiciled in New York because she moved there “with the intent to make

it her domicile.” This contention is plainly at odds with the facts asserted in Plaintiff

Mason’s complaint. Plaintiff Mason’s complaint states that at the time of her death, the

decedent was “a resident and domiciliary of Mineral County, West Virginia” who was

visiting her sister in New York when she became ill.5 In support of this assertion,

Plaintiff Mason relies on the following: 1) the decedent’s New York death certificate lists

her residence as Keyser, West Virginia; 2) the decedent owned and maintained a

residence in Elk Garden, West Virginia; 3) the decedent filed income tax returns in West

Virginia; 4) the decedent held a West Virginia driver’s license; 5) the decedent


       5
        In Syllabus Point 2 of Lotz v. Atamaniuk, 172 W.Va. 116, 304 S.E.2d 20 (1983),
this Court held: “Domicile is a combination of residence (or presence) and an intention of
remaining. If domicile has once existed, mere temporary absence will not destroy it,
however long continued.”



                                            12

maintained a bank account at M&T Bank in Keyser, West Virginia; and 6) the decedent

owned other property, including a car lot, in West Virginia.

              “For purposes of the motion to dismiss, the complaint is construed in the

light most favorable to plaintiff, and its allegations are to be taken as true.” John W.

Lodge Distrib. Co. v. Texaco, Inc., 161 W.Va. at 605, 245 S.E.2d at 158. Thus, for

purposes of the instant motion to dismiss, the assertion that the decedent was a resident

and domiciliary of West Virginia must be accepted as true. Because Woofter applies to a

decedent “domiciled in another state,” we find that our holding in Woofter provides no

support for Defendant Torrellas’ argument that this case should be dismissed pursuant to

Rule 12(b)(6).

              Defendant Torrellas’ argument that the final order from the New York court

forecloses any further inquiry into the validity of the decedent’s will by a West Virginia

court is also at odds with this Court’s ruling in Thrasher v. Ballard, 33 W.Va. 285, 10

S.E. 411 (1889). The decedent’s estate in the instant matter included real estate located

in West Virginia. In Syllabus Point 3 of Thrasher, this Court held “[a] sentence of

probate made in another state upon a will is not evidence in the courts of this state of the

validity and due execution of the will, as to lands situate in this state, devised by it, so as

to pass title to such land to the devisee.”

              Further, as will be discussed at length in part B. of our analysis infra, an

interested party may challenge the probate of a foreign will in West Virginia pursuant to

W.Va. Code § 41-5-13. Interested parties who may challenge the probate of a foreign


                                              13

will in West Virginia include “distributees under a prior will.” Christopher J. Winton,

Mark W. Kelly, Laying Claim: A Practitioner’s Guide to Will Contests in West Virginia,

96 W.Va. L. Rev. 123, 128 (1993). Plaintiff Mason is a distributee under the decedent’s

prior will. Based on the foregoing, we conclude that, under the facts alleged in Plaintiff

Mason’s complaint, the final order from the New York court does not foreclose further

inquiry into the decedent’s will by a West Virginia court.




                              B. Probate of a Foreign Will

              Defendant Torrellas argues that “[i]f there were any proper method by

which to challenge . . . the ancillary probate of the NY Will here in West Virginia, it

would have been in front of the [Mineral County] Commission, which has some level of

authority to confirm probate in the foreign court[.]” Thus, Defendant Torrellas argues

that Plaintiff Mason’s only avenue to challenge the New York will in West Virginia was

in front of the county commission and not in the circuit court.

              Our analysis of this issue begins with an examination of West Virginia’s

probate process. “It is fundamental that the execution and probate of wills are governed

by statutory law.” In re Winzenrith’s Will, 133 W.Va. 267, 275, 55 S.E.2d 897, 902

(1949). A comprehensive West Virginia University Law Review article described our

state’s probate system as follows:

                   In West Virginia, jurisdiction to probate wills lies in
              the County Commission. West Virginia Code § 41-5-4

                                            14
             specifies the venue for probate of the will of a resident
             decedent according to a hierarchy as follows: (1) the county
             where the decedent had his residence; (2) a county where any
             real estate is situated; (3) the county where the decedent died;
             or (4) a county where the decedent had any property at the
             time of his death. The probate of a non-resident’s will lies in
             any county where the decedent had property. In West
             Virginia, there are two procedures for probating a will:
             solemn form and ex parte. . . .

                    A simpler procedure for probate is known as ex parte.
             Any person may move the County Commission for probate of
             a will without notice to any other party. The motion for ex
             parte probate is made orally, and no formal written motion is
             required. The informal, ex parte procedure is the usual
             method of probate used in West Virginia.

Winton, Laying Claim: A Practitioner’s Guide to Will Contests in West Virginia, 96

W.Va. L. Rev. at 125-26 (1993).

             In the present case, Defendant Torrellas began the ex parte process to

probate the New York will before the Mineral County Commission. Plaintiff Mason,

however, properly challenged that ex parte process in the circuit court. West Virginia

Code § 41-5-13, entitled “Probate of foreign will,” describes how a foreign will may be

probated in West Virginia:

                    Where a will relative to an estate within this state has
             been proved without the same, an authenticated copy thereof
             and the certificate of probate thereof, may be offered for
             probate in this state. When such copy is so offered, the county
             commission, or the clerk thereof in the vacation of the
             commission, to which or to whom it is offered, shall presume,
             in the absence of evidence to the contrary, that the will was
             duly executed and admitted to probate as a will of personalty
             in the state or country of the testator’s domicile, and shall
             admit such copy to probate as a will of personalty in this
             state; and if it appears from such copy that the will was

                                           15
              proved in the foreign court of probate to have been so
              executed as to be a valid will of land in this state by the laws
              thereof, such copy may be admitted to probate as a will of
              real estate. But any person interested may, within one year
              from the time such authenticated copy is admitted to
              record, upon reasonable notice to the parties interested,
              have the order admitting the same set aside, upon due and
              satisfactory proof . . . that such probate was improperly
              made.

              Under W.Va. Code § 41-5-13, an interested person has one year to

challenge a foreign will that is admitted to probate by a county commission. According

to Plaintiff Mason’s complaint, the New York will was admitted in an ancillary ex parte

probate proceeding by the Mineral County Commission on July 24, 2014. Plaintiff

Mason filed his complaint in circuit court challenging this probate in February 2015.

West Virginia Code § 41-5-11 [1994] “gives the absolute right to a person who is not a

party to the probate of a will in the county court [now county commission] to institute a

proceeding to impeach such will in the circuit court if, of course, he has or could have an

interest in the property.” Miranosky v. Parson, 152 W.Va. 241, 245, 161 S.E.2d 665, 667

(1968) (emphasis added). One law review article described the right to impeach a will in

circuit court after it has been admitted to probate before a county commission as follows:

                      Interested persons who were not parties to an ex parte
              or solemn form probate proceeding may seek to impeach a
              will under the appeal provisions of West Virginia Code
              section 41-5-11. A proceeding filed under this section is
              known as an issue devisavit vel non, and jurisdiction is in the
              circuit court. . . . Venue is proper in the county where the will
              was admitted or denied probate.




                                             16

Winton, Laying Claim: A Practitioner’s Guide to Will Contests in West Virginia, 96

W.Va. L. Rev. at 126.6

               Plaintiff Mason was not a party to the probate before the county

commission, and he has an interest in the property as a devisee under the decedent’s West

Virginia will. Plaintiff Mason’s complaint alleged that the probate of the New York will

before the county commission was improperly made because the New York will was

procured through fraud, undue influence, and because the decedent lacked the

testamentary capacity to execute it. Because Plaintiff Mason brought his complaint in the

circuit court within one year of the New York will being admitted to probate by the

county commission, we disagree with Defendant Torrellas’ contention that Plaintiff

Mason’s only avenue to challenge the probate of the New York will in West Virginia was

before the county commission.




      6
          West Virginia Code § 41-5-11 provides, in part:

                       After a judgment or order entered as aforesaid in a
               proceeding for probate ex parte, any person interested who
               was not a party to the proceeding . . . may proceed by
               complaint to impeach or establish the will, on which
               complaint, if required by any party, a trial by jury shall be
               ordered, to ascertain whether any, and if any, how much, of
               what was so offered for probate, be the will of the decedent. .
               . . Any complaint filed under this section shall be in the
               circuit court of the county wherein probate of the will was
               allowed or denied.



                                             17

                                  C. Pleading Standard

              Finally, we examine Defendant Torrellas’ argument that even if the West

Virginia circuit court has jurisdiction over this matter, Plaintiff Mason failed to plead

sufficient facts to demonstrate that the probate of the New York will was improper.

Specifically, Defendant Torrellas asserts that Mr. Mason’s “claim for fraud is not

sufficiently pleaded.”

              Typically “[a] pleading which sets forth a claim for relief . . . [must] contain

(1) a short and plain statement of the claim showing that the pleader is entitled to relief,

and (2) a demand for judgment for the relief to which he deems himself entitled.” W.Va.

R. Civ. P. 8(a). However, when a party alleges that he/she has been injured by the fraud

or fraudulent conduct of another, “the circumstances constituting fraud . . . [must] be

stated with particularity.” W. Va. R. Civ. P. 9(b). See also Funeral Serv. by Gregory, Inc.

v. Bluefield Cmty. Hosp., 186 W.Va. 424, 430, 413 S.E.2d 79, 85 (1991) (instructing that

“in order to establish fraud, the circumstances must be clearly alleged and proved”),

overruled on other grounds by Courtney v. Courtney, 190 W.Va. 126, 437 S.E.2d 436

(1993); Syllabus Point 1, in part, Hager v. Exxon Corp., 161 W.Va. 278, 241 S.E.2d 920

(1978) (“[F]raud or mistake must be alleged in the appropriate pleading with

particularity[,] and the failure to do so precludes the offer of proof thereof during the

trial.”).

              The reason for the deviation from the general pleading requirements when

fraud is charged is both to allow the party alleged to have committed fraud to defend such


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charges and to permit the tribunal hearing the matter to conduct a full review of the

complaining party’s claims. Syllabus Point 4, in part, Croston v. Emax Oil Co., 195

W.Va. 86, 464 S.E.2d 728 (1995) (“The failure to plead particularly the circumstances

constituting fraud not only inhibits full review of the substance of the claim of fraud by

this Court on appeal . . . such failure also precludes the introduction of evidence

supportive of any general allegation of fraud contained in the complaint[.]”).

              One law review article described a claim of fraud brought pursuant to a will

contest as follows:

                     Fraud occurs when a testator is misled into executing a
              will which he does not know to be a will or which does not
              say what he thinks it says. Ordinarily, the party alleging
              fraud bears the burden of proof, and the standard is clear and
              convincing evidence. However, the burden may shift to the
              person accused of fraud where a trust or confidential
              relationship exists. If fraud is proven, the court may either set
              aside the will or, in appropriate cases, decree a constructive
              trust.

Winton, Laying Claim: A Practitioner’s Guide to Will Contests in West Virginia, 96

W.Va. L. Rev. at 136.7




       7
          A presumption of constructive fraud or undue influence may be raised in some
circumstances. “The West Virginia Supreme Court has adopted a presumption of undue
influence in certain circumstances. In the case of Frye v. Norton, [148 W.Va. 500, 135
S.E.2d 603 (1964)] an attorney was accused of undue influence when the will of the
testatrix left her estate to him.” Winton, Laying Claim: A Practitioner’s Guide to Will
Contests in West Virginia, 96 W.Va. L. Rev. at 137.



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             Reviewing Plaintiff Mason’s complaint, we conclude that the allegations

set forth sufficient facts to satisfy the pleading requirement in Rule 9(b) of the West

Virginia Rules of Civil Procedure. First, Plaintiff Mason’s complaint includes an explicit

allegation of fraud: “Defendant [Torrellas] misled [the decedent] into executing the NY

will, thereby committing fraud.” (Emphasis added). Plaintiff Mason’s complaint sets

forth a detailed recitation of this alleged fraud. The complaint alleges that the decedent

executed a West Virginia will in 2012, making a number of bequests: to her West

Virginia church, to a West Virginia cemetery for continued maintenance of her gravesite,

to her sister Irene Ketelsen, and to a West Virginia resident, Plaintiff Mason. Two years

later, according to the complaint, the decedent, suffering from dementia, revoked her

West Virginia will, disinheriting her West Virginia church, her West Virginia cemetery,

and West Virginia resident Plaintiff Mason, and executed a new will in which she left her

entire estate to her New York sister, Irene Ketelsen. According to the complaint, the

New York will was executed ten days before the decedent’s death while the decedent was

in the hospital, suffering from dementia. Plaintiff Mason’s complaint asserts that because

of her physical and mental infirmities, the decedent was unable to make decisions about

her financial affairs. Further, the complaint alleges that Defendant Torrellas knew that

the decedent was of unsound mind and lacked testamentary capacity when the New York

will was made; that Defendant Torrellas misled the decedent into executing the New

York will, thereby committing fraud; and that the decedent “was not acting of her own

free will, but was simply responding completely to the dictates and influence of”


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Defendant Torrellas. The decedent’s death certificate lists dementia as one of her causes

of death.

             Under these facts, we find that Plaintiff Mason has complied with Rule 9(b)

of the Rules of Civil Procedure.

                                            IV.


                                    CONCLUSION


             For the foregoing reasons, we reverse the June 24, 2015, order of the

Circuit Court of Mineral County, and remand this matter to the circuit court for further

proceedings consistent with this opinion.

                                                                Reversed             and

Remanded.




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