Kiddell v. Labowitz

PRESENT: All the Justices

LAURIE A. KIDDELL, ET AL.
                                             OPINION BY
v.    Record No. 111236                JUSTICE CLEO E. POWELL
                                          November 1, 2012
KEN LABOWITZ, EXECUTOR OF THE
ESTATE OF LOUISE BRADFORD JUDSEN

        FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
               Alfred D. Swersky, Judge Designate

     In this will contest, we consider whether the circuit court

erred in instructing the jury as to the existence of the

presumption of testamentary capacity.    Appellant contends that,

under the facts of this case, the presumption disappeared, and

it was error to instruct the jury regarding the presumption.     We

conclude that the presumption does not necessarily disappear in

the face of evidence to the contrary.    Moreover, the circuit

court, in this case, did not rule, at the motion to strike, that

the presumption had been rebutted.     Therefore, the circuit court

did not err in instructing the jury about the presumption, and

we affirm the circuit court’s judgment.

                    I. FACTS AND PROCEEDINGS

     Louise Bradford Judsen executed a will on April 19, 2010,

(“the April will”), naming her beneficiaries: Judsen’s cousin,

Laurie Kiddell (“Laurie”); Laurie’s husband, Lee Kiddell

(“Lee”); their daughter, LeAnn Kiddell (“LeAnn”); two other




                                   1
first cousins; and the “American Cancer Association.”    The April

will was prepared by Laurie from an online template.

     On June 15, 2010, Judsen executed another will (“the June

will”), naming Kenneth E. Labowitz, an attorney, as the executor

of her estate.   In the June will, Judsen bequeathed her dog and

a cash gift for the dog’s care to Laurie.    Judsen bequeathed

one-third of her residuary estate to the “Leukemia & Lymphoma

Society Inc.,” one-third to the “American Cancer Society Inc.,”

and one-third to a “Head Trauma Research Center” to be chosen in

the sole discretion of her executor.

     Judsen died on June 18, 2010, and the June will was

admitted to probate.   Laurie and LeAnn (hereinafter referred to

collectively as “Kiddell”) filed a “Complaint to Impeach Will,

Nullify Probate Order and Admit Earlier Will to Probate” against

Labowitz, the Leukemia and Lymphoma Society, Inc., and the

American Cancer Society, Inc.    In this complaint, Kiddell

alleged that Judsen lacked testamentary capacity when she

executed the June will. 1   Kiddell sought to have the order

admitting the June will to probate nullified and the April will

admitted to probate.   Labowitz filed an answer denying Kiddell’s

claims. 2


     1
       Lee was not a party to the complaint and is not a party to
this appeal.
     2
       The other named defendants did not respond to the
complaint.
                                  2
     At a jury trial, the evidence showed that Judsen was

diagnosed with a terminal illness in February 2010.   On May 13,

2010, Judsen’s health had deteriorated and she was admitted to a

hospital.

     At the request of Laurie, who lived in Illinois, Labowitz

contacted Judsen in the hospital because Laurie wanted him to

assist Judsen with her financial matters.   Specifically, Laurie

wanted Labowitz to be authorized to act under Judsen’s power of

attorney instead of Laurie.   According to Labowitz, Judsen

became “upset” with Laurie for sending Labowitz “to [perform

duties under] the new power of attorney.”   Despite her anger,

Judsen executed a new power of attorney naming Labowitz as her

attorney in fact.   Labowitz testified that, during the meetings

that he had with Judsen, she was insistent on returning home,

concerned about her dog, and aware that she had only a small

amount of cash among her assets.

     According to Labowitz, Judsen also told him she wanted to

execute a new will.   Consequently, Labowitz contacted Sean

Dunston, an attorney practicing primarily in the area of wills,

trusts, and estates, to assist Judsen with her new will.

Although Laurie sent the April will to Labowitz, Labowitz did

not give Dunston the April will because Labowitz had previously

filed it with the Fairfax County Circuit Court.   Labowitz did

not believe that he told Dunston about this will.

                                   3
     Dunston met with Judsen at the hospital on multiple

occasions concerning the preparation of her will.   According to

Dunston, during a meeting with Judsen on June 3, she explained

that she wanted to dispose of her estate by providing for the

care of her dog and leaving the residue of her estate to three

specific charities.   On June 14, Dunston reviewed a draft will

with Judsen.   Judsen indicated that there was an error in the

paragraph stating that she was “not unmarried.”   She advised

Dunston that she was divorced.   When Dunston asked if she wished

to include any family members as beneficiaries, Judsen answered

“no.”   However, she told Dunston that she wanted Laurie to take

care of her dog.   Dunston specifically reviewed with Judsen the

clause that bequeathed her residuary estate to three charities.

     Dunston finalized Judsen’s will and returned to the

hospital on June 15 with two paralegals from his office.   After

Dunston read all the provisions of the will aloud to Judsen, she

confirmed that the will expressed her wishes, that she was of

sound and disposing mind, and that she was signing the document

freely and voluntarily.   Judsen then executed the will.   Dunston

and one of the paralegals from his office witnessed the

testator’s execution of her will, and the other paralegal served

as the notary public in accordance with the provisions of Code

§ 64.1-49.   According to Dunston, there was no question in his

mind that when Judsen executed the June will, she knew her

                                 4
property and the natural objects of her bounty.   She understood

that she was executing a will and knew how she wished to dispose

of her property.   The two paralegals also confirmed that

although the testator seemed tired, she was coherent and able to

respond to Dunston’s questions.   Neither paralegal had any

concerns about the testator’s ability to execute the will.     One

of them testified that the testator “fully underst[ood]” the

document she was executing.

     Laurie testified that she and Judsen were “very close” when

they were growing up.   Since 2005, when Judsen became involved

in Laurie’s business, they spoke several times each week.

Laurie also testified that at some point, she talked with Judsen

about drafting a will, and according to Laurie, Judsen stated

that she wished to leave her estate to Laurie, her husband and

daughter.   Nevertheless, Laurie admitted that Judsen became

angry with her when she contacted Labowitz to assist with

Judsen’s financial matters.   Laurie believed that Judsen was

being “spiteful” when she executed the June will with terms that

were dramatically different than the terms of the April will.

     James Carlton, a tenant in Judsen’s home and a witness to

the April will, testified that when he visited Judsen at the

hospital on June 14, she did not maintain eye contact with him

and responded “yes” to every question he asked her.   Carlton did

not, however, see Judsen on the day she executed the June will.

                                  5
He also stated that Judsen had a tendency to “get mad at anybody

who didn’t do what she wanted when she wanted.”

     Dr. Abdulkadir Salhan, one of Judsen’s attending

physicians, testified that he completed a report on June 15,

2010, for the purpose of evaluating her competency.   In that

report, he opined that Judsen was “not competent” and “ha[d] a

disability that prevent[ed] [her] from making or communicating

any responsible decisions concerning [her] property.”   Dr.

Salhan, however, conceded that medical record notations dated

June 15 stated that Judsen understood “her disease, her

diagnosis, stage, and prognosis.”    Dr. Salhan also admitted that

he did not question Judsen concerning her property, finances, or

family, and that he did not specifically assess her capacity to

execute a will.

     Dr. Thomas Hyde, who testified at trial as an expert in the

field of neurology, reviewed Judsen’s medical records, treatment

plan, and medications.   He opined that Judsen’s cognitive

abilities were markedly impaired on June 15, 2010, such that she

would have been precluded from fully understanding the nature

and extent of her property, the members of her family and “to

whom she was giving property and in what manner.”   Dr. Hyde

further opined that Judsen would have known that she was signing

a paper but would not have known what was on it.




                                 6
     At the close of Kiddell’s case, Labowitz moved to strike

the evidence, arguing that Kiddell failed to overcome the

presumption of testamentary capacity by a preponderance of the

evidence.   The circuit court denied Labowitz’ motion.

     At the close of all the evidence, Kiddell moved to strike

Labowitz’ evidence, arguing that the evidence was insufficient

to prove that Judsen had testamentary capacity when she executed

the June will.   The circuit court denied the motion and allowed

the case to go to the jury.

     In submitting the case to the jury, the parties agreed on

two jury instructions, Instructions 5 and 6, related to this

appeal.   Jury Instruction 5 stated:

          Your verdict must be based on the facts as
     you find them and on the law contained in all of
     these instructions.

          The only question in this case is whether
     this writing is the last will of Louise Judsen.
     In deciding this question, you will have to
     consider this issue:

          (1) Did Louise Judsen have testamentary
     capacity when she signed it?

          On this issue, the proponents of the will
     have the burden of proof by the greater weight of
     the evidence.

          Your decision on this issue must be governed
     by the instructions that follow.

The instruction that followed, Jury Instruction 6, stated:

          You shall find the writing dated June 15,
     2010 to be the last will [of] Louise Judsen if

                                 7
     the proponent proved by the greater weight of the
     evidence that:

        (1) Louise Judsen was capable of making a will
     at the time she executed the writing.

          You shall find that the writing dated June
     15, 2010 was not the last will [of] Louise Judsen
     if the proponent failed to prove the element
     above.

The circuit court also granted two jury instructions over

Kiddell’s objection that allowed the jury to consider the

existence of the presumption of testamentary capacity and

whether the presumption had been rebutted.   Instruction 8

stated:

          Your verdict must be based on the facts as
     you find them and on the law contained in all of
     these instructions.

          The only question in this case is whether
     the writing of June 15, 2010, is the last will of
     Louise Bradford Judsen. In deciding this
     question you will have to consider these issues:

          (1) The proponent of the will, the defendant
     Mr. Labowitz is entitled to a presumption that
     Ms. Judsen had testamentary capacity on June 15,
     2010, at the time she executed the writing.

          (2) The opponents of the will, Laurie A.
     Kiddell and Leann M. Kiddell, must introduce
     evidence sufficient to rebut the presumption of
     testamentary capacity.

          (3) If you find that the opponents of the
     will have introduced evidence sufficient to rebut
     the presumption, the burden rests upon the
     proponent of the will to prove by the greater
     weight of the evidence that Ms. Judsen had
     testamentary capacity at the time of the
     execution of the June 15, 2010, writing.

                                8
Similarly, Instruction 9 stated:

          You shall find your verdict in favor of
     complainants, Laurie A. Kiddell and Leann M.
     Kiddell, if you find that they have introduced
     evidence sufficient to rebut the presumption of
     testamentary capacity and defendant, Mr.
     Labowitz, has failed to prove by the greater
     weight of the evidence that Ms. Judsen had
     testamentary capacity at the time of the
     execution of the writing.

          You shall find your verdict in favor of the
     defendant, Mr. Labowitz, if the complainants have
     failed to present evidence sufficient to overcome
     the presumption of testamentary capacity or
     defendant, Mr. Labowitz, has proved testamentary
     capacity at the time of execution by the greater
     weight of the evidence.

Kiddell objected to these instructions, arguing that because the

presumption of testamentary capacity had been rebutted, the

presumption disappeared and the only issue for the jury to

resolve was whether Labowitz proved Judsen’s testamentary

capacity by the greater weight of the evidence.   The trial court

responded that “I haven’t ruled [that] you rebutted the

presumption.   I ruled there was . . . sufficient evidence on the

question . . . of whether you rebutted it.   If you hadn’t, this

case would have been over this morning.” 3


     3
       When ruling on Labowitz’ motion to strike, the trial court
stated that the “burden has been met,” and “therefore the motion
to strike will be denied.” Standing alone, this statement
leaves one to wonder whether the “burden” that had been “met”
was the submission of sufficient evidence to survive a motion to
strike or evidence sufficient to rebut the presumption. The
trial court answered this question by rejecting Kiddell’s
                                   9
     The jury returned a general verdict in favor of Labowitz,

as executor of Judsen’s estate.    In a final order, the circuit

court entered judgment in accordance with the jury verdict and

ordered that the June will is Judsen’s “Last Will and

Testament.”   We awarded Kiddell this appeal on two issues: (1)

whether the circuit court erred by granting Instructions 8 and

9; and (2) whether the circuit court erred by denying Kiddell’s

motion to strike the evidence.

                           II. ANALYSIS

               A. Presumption of Testamentary Capacity

     When reviewing whether proper jury instructions were given

by a trial court, this Court’s “sole responsibility . . . is to

see that the law has been clearly stated and that the

instructions cover all issues which the evidence fairly raises.”

Swisher v. Swisher, 

, 

(1982); accord Hancock-Underwood v. Knight, 

,

 (2009).   “Whether the content of [an]

instruction is an accurate statement of the relevant legal

specific assertion during discussions regarding the jury
instructions at issue, when counsel asserted that “Your Honor
has ruled that we have . . . rebutted the presumption.” The
court immediately responded, “I haven’t ruled [that] you
rebutted the presumption.” This clarification, coupled with the
fact that the trial court proceeded to instruct the jury that
there was a presumption that they should consider, clearly
indicates that the trial court did not decide that Kiddell had,
as a matter of law, rebutted the presumption.



                                  10
principles is a question of law that, like all questions of law,

we review de novo.”     Hancock-Underwood, 

, 

.

     On appeal, Kiddell argues that the presumption disappears

when a trial court determines that the opponent has presented

evidence to rebut it.    Thus, according to Kiddell, it was

reversible error for the court to give Instructions 8 and 9 and

that only Instructions 5 and 6 were necessary to instruct the

jury properly.   Labowitz responds that Instructions 8 and 9,

together with Instructions 5 and 6, clearly stated which party

“was aided by a presumption and the obligations of each party to

present evidence on the issue of testamentary capacity.”

Labowitz contends he was entitled to Instructions 8 and 9

because those instructions properly informed the jury that, as

the proponent of the validly executed June will, he was aided in

meeting his burden of persuasion by a presumption of

testamentary capacity that remained unless Kiddell produced

sufficient evidence to rebut the presumption.

     Generally, “[a] presumption is a rule of law that compels

the fact finder to draw a certain conclusion or a certain

inference from a given set of facts.”    Martin v. Phillips, 

, 

 (1988).    Thus,

     [a] party is as much entitled to a benefit of a
     presumption of law as he would be to have any
     other appropriate legal rule applied to the facts

                                  11
     of his case; and, where the facts which are
     required to give rise to the presumption are
     proven, the presumption must be applied (the
     presumed fact must be assumed to have been
     proven) until evidence sufficient to overcome the
     presumption and prove the contrary shall have
     been introduced.

Simpson v. Simpson, 

, 

 (1934).

“The primary significance of a presumption is that it operates

to shift to the opposing party the burden of producing evidence

tending to rebut the presumption.”        Martin, 

, 

; see also Rule 2:301.

     In a will contest, “the 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.”   Gibbs v. Gibbs, 

, 

 (1990).   Such a

     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.”

Weedon v. Weedon, 

, 252-53, 

, 558

(2012) (quoting Code § 64.1-49).        The burden of persuasion

always remains with the proponent of the will, but once the

proponent has proven compliance with statutory requirements for

                                   12
a valid will, the burden of production shifts to the opponent to

“go forward with evidence sufficient to rebut the presumption.”

Gibbs, 

, 

 (emphasis added).

     When a word is commonly used and has an accepted meaning, a

trial court need not instruct the jury as to the meaning of the

word.    See Wells v. Commonwealth, 

, 

 (2012) (citing Clark v. Commonwealth, 

, 

, 790 (1979)).    Black’s Law Dictionary

treats “sufficient evidence” and “satisfactory evidence” as

synonymous.    State v. Narron, 

 (N.C. Ct. App.

2008).    It defines “satisfactory evidence” as “[e]vidence that

is sufficient to satisfy an unprejudiced mind seeking the truth.

– Also termed sufficient evidence; satisfactory proof.”     Black’s

Law Dictionary 639 (9th ed. 2009).    “Sufficient” means

“[a]dequate; of such quality, number, force or value as is

necessary for a given purpose <sufficient consideration>

<sufficient evidence>.”    Id. at 1571.

     As early as 1908, this Court addressed the propriety of

advising the jury of the presumption in will contests and

allowing them to consider it.    Hopkins v. Wampler, 

, 

 (1908); see also Tate v. Chumbley,

, 

 (1950); Jenkins v.

Trice, 

, 

 (1929); Rust v. Reid,




                                 13


, 

 (1918); Huff v. Welch, 

, 

 (1913).

           Where, however, the sanity of the testator
     is put in issue by the evidence of the
     contestant, the onus probandi lies upon the
     proponent to satisfy the court or jury that the
     writing propounded is the will of a capable
     testator. Yet, upon the trial of that issue,
     there is an existent presumption in favor of the
     testator’s sanity. Indeed, of such force is that
     presumption in our jurisprudence, that though one
     be on trial for a felony, involving life or
     liberty, when the defense of insanity is relied
     on, it must be proved to the satisfaction of the
     jury.

Hopkins, 

, 

.    A few years later,

this Court approved the following instruction based on its

holding in Hopkins:

     While the burden of proof is upon those offering
     a will for probate, to show testamentary capacity
     on the part of the testator at the time the will
     was executed to the satisfaction of the jury, yet
     the court tells the jury that there is in all
     cases an existing presumption in favor of the
     testator’s sanity and capacity, which is to be
     taken into consideration by the jury in
     determining the question of competency.

Huff, 

, 

. 4   For the next

hundred years, the Court addressed and approved the exact same


     4
       The jury in the instant case was specifically told to
determine whether the opponents had presented sufficient
evidence to rebut the presumption of testamentary capacity. In
prior cases, the jury was told that they were to take “into
consideration” the presumption of testamentary capacity when
“determining the question of competency.” Rust, 

,

; see e.g., Tate, 

, 

; Huff, 

, 

. Telling the
                                14
instruction or a close variant.    See Tate, 

, 

; Jenkins, 

, 147 S.E at 260; Rust,

, 97 S.E.2d at 331.

     Here, Labowitz contends that Instructions 8 and 9 were

similar to jury instructions approved by this Court in Rust and

Tate.   In Rust, one of the issues on appeal involved the

following jury instruction:

     While the burden of proof is upon those offering
     a will for probate, to show testamentary capacity
     on the part of the testator at the time the will
     was executed to the satisfaction of the jury, yet
     the court tells the jury that there is in all
     cases an existing presumption in favor of the
     testator’s sanity and capacity, which is to be
     taken into consideration by the jury in
     determining the question of competency.

, 

 (internal quotation marks

omitted).   The objecting party contended that the latter part of

the instruction conflicted with the first part.   

    Rejecting

that argument, this Court first explained that when the



jury to take the presumption into consideration is the
functional equivalent of instructing the jury to determine
whether the evidence was sufficiently rebutted. Indeed, this
practice is not without precedent in will contest cases. With
regard to lost wills, the Virginia Model Jury Instructions
inform the jury that there is a presumption that a will that was
in the possession of the decedent prior to his death but cannot
be found after his death was destroyed and “[t]o overcome this
presumption the burden is on [the proponent] to prove by clear
and convincing evidence that [decedent] did not revoke the
will.” 2 Virginia Model Jury Instructions – Civil, No. 48.055,
at 48-27 (repl. ed. 2011).



                                  15
proponent of a will shows compliance with all the statutory

requirements for due execution, “the legal presumption of sanity

comes to his relief and dispenses with any evidence to the

contrary.” 

, 

.

       In Tate, the issue at trial was “which, if either, of two

paper writings, both being testamentary in character, dated

respectively April 27, 1915, and November 29, 1916 . . .

constitute[d the] last will and testament” of Margaret S. Tate.

, 

.    A jury returned a verdict

sustaining the 1916 will.    

, 

.

Evidence at trial showed that Tate was “mentally capable” of

making the 1915 will but that during the six months thereafter,

her mental capacity became impaired.    

, 

.    On November 23, 1915, she was “adjudged to be insane.”

       In that case, the jury was instructed, inter alia, that

       while the burden of proof is upon those offering
       a will for probate, to show testamentary capacity
       on the part of the testatrix at the time the will
       was executed to the satisfaction of the jury, yet
       the court tells the jury that all persons who
       have not been adjudged insane are presumed to be
       sane and capable of making a will until the
       contrary is proved, and that this presumption is
       to be taken into consideration by the jury in
       determining the question of competency.




                                 16


, 

 (internal quotation marks omitted).

This Court again approved instructing a jury as to the

presumption of testamentary capacity.

     Thus, recognizing that this Court has a long history of

approving jury instructions on the presumption of testamentary

capacity, we must determine whether such instructions were

appropriate in this case.

     As Kiddell correctly argues, in most contexts in Virginia,

a presumption disappears when the presumption is rebutted as a

matter of law.   Kavanaugh v. Wheeling, 

, 

 (1940).   However, Kiddell’s contention that the

presumption of testamentary capacity disappears in the face of

any evidence presented to the contrary is incorrect.

     A presumption of law cannot be said to be
     rebutted where the evidence of equally credible
     witnesses for and against the presumption is
     equally balanced. The rebutter has not carried
     the burden imposed upon him by law. Where the
     evidence for and against the presumption are
     equal the presumption will prevail.

Rowe v. Rowe, 

, 

 (1925).     “The

presumption of sanity is rebuttable, but it is not necessarily

extinguished by conflicting evidence.”   Nelms v. Nelms, 

, 

 (1988).

     Kiddell’s argument not only ignores the fact that the trial

court did not actually rule that the presumption was rebutted,

but also, in persisting in her argument, Kiddell ignores the

                                17
trial court’s ultimate role in ruling on a motion to strike.

“In ruling on a motion to strike, trial courts should not

undertake to determine the truth or falsity of testimony or to

measure its weight.”     Williams v. Vaughan, 

, 

 (1973).    “The credibility of witnesses and

the weight to be given their testimony are matters peculiarly

within the province of the jury.”      

, 

; see also Higgins v. Bowdoin, 

, 

 (1989) (holding the trial court failed to adhere to the

principles governing motions to strike when it “undertook to

determine the truth or falsity of the testimony and to weigh the

evidence”).   For purposes of the motion to strike, a trial court

must “accept as true all evidence favorable to a plaintiff and

any reasonable inferences that may be drawn from such evidence.”

James v. City of Falls Church, 

, 

 (2010).

     In ruling on Labowitz’ motion to strike Kiddell’s evidence,

the trial court was required to accept as true all evidence

favorable to Kiddell and any reasonable inferences therefrom.

It necessarily follows that when the trial court denied

Labowitz’ motion to strike, it implicitly found that the

evidence presented by Kiddell, if accepted by the jury as true

and given sufficient weight, could rebut the presumption of

testamentary capacity.    However, the determination of whether

                                  18
the evidence did, in fact, rebut the presumption, was not made

by the trial court when it ruled on the motion to strike.       The

trial court’s denial of Labowitz’ motion to strike amounted only

to a ruling that Kiddell’s evidence could potentially rebut the

presumption, not that it did, as a matter of law, rebut the

presumption.

     Indeed, to hold otherwise would improperly equate the

denial of a motion to strike with the granting of a motion for

partial summary judgment.    The trial court may only enter a

partial summary judgment when it has granted a motion to strike.

See Code § 8.01-378.   When the trial court has denied a motion

to strike, “the trial continues as if the motion had not been

made.”   William H. Bryson, Bryson on Virginia Civil Procedure

§ 11.05[4] (4th ed. 2005).    Therefore, when the trial court

denied Labowitz’ motion to strike, the trial was to continue, as

it did, with the presumption in favor of testamentary capacity

still in place and for consideration by the jury.

     The existence of the presumption of testamentary capacity

is a matter of law, but whether the presumption has been

sufficiently rebutted is a question of fact.    Given the

necessary role of the presumption in the factual determinations,

the presumption does not disappear unless, as a matter of law,

no rational finder of fact could find that the presumption had

not been rebutted.

                                 19
     Unlike in some other jurisdictions, in Virginia a

presumption disappears only if rebutted by ascertained or

established facts or by substantial evidence “showing the true

facts to be to the contrary.”   Kavanaugh, 

, 

(emphasis added); Schmitt v. Redd, 

, 

 (1928); but cf., In re Mid-South Towing

Co., 

 (5th Cir. 2005) (“Evidentiary

presumptions . . . are designed to fill a factual vacuum. Once

evidence is presented . . . presumptions become superfluous

because the parties have introduced evidence to dispel the

mysteries that gave rise to the presumptions.”); Hertz v. Record

Publ’g Co., 

 (3d Cir. 1955) (holding that a

presumption “disappears when contrary evidence of the fact in

issue is introduced”); Heffenger v. Heffenger, 

(N.H. 1938) (“When there is either evidence, or an inference

from evidence, bearing upon the issue of a testator’s intention

to include or exclude a particular item of property from the

terms of his will the presumption against partial intestacy

disappears.”).   Once Labowitz presented evidence that the June

will was executed in compliance with statutory requirements,

there was a presumption that Judsen had testamentary capacity at

the time she executed that will.     That presumption could be

rebutted by evidence that Judsen was not competent at that time.

However, even when the opponent of a will produces evidence

                                20
that, if believed, could ascertain or establish facts sufficient

to rebut the presumption of the testator’s capacity, the

determination of whether the presumption has been rebutted is to

be determined by the jury, unless the opponent has rebutted the

presumption as a matter of law.    The evidence presented by

Kiddell, while potentially sufficient to rebut the presumption

of capacity if believed, did not, as a matter of law, ascertain

or establish Judsen’s incapacity as a true fact.     Thus, it was

not sufficient to rebut the presumption as a matter of law.     The

circuit court did not err in ruling that the presumption had not

been rebutted or in sending the evidence to the jury.

     When the proponent of a will enjoys the presumption of

testamentary capacity, the jury must be instructed as to this

presumption.   Where the evidence is in equipoise, the

presumption comes to the proponent’s rescue, allowing him to

prevail.   Indeed, if the jury is not advised of the presumption,

the proponent is deprived of this benefit and, in the face of

equal evidence, would be found to have not carried his burden

even though the law is otherwise.      For this reason, we hold that

the presumption of testamentary capacity does not disappear,

unless the circuit court rules that the presumption was rebutted

as a matter of law because no rational fact finder could find

that the presumption had not been rebutted.     In this case, the

circuit court did not err in instructing the jury as to the

                                  21
existence of the presumption.

                 B.   Motion to Strike the Evidence

     Kiddell also argues that the circuit court erroneously

denied the motion to strike Labowitz’ evidence because he failed

to prove Judsen was aware of her family members and the natural

objects of her bounty when she executed the June will.    In light

of the terms of Judsen’s April will leaving her estate primarily

to Laurie, Lee Kiddell, and LeeAnn Kiddell and also naming 12

other relatives who were to receive nothing, Kiddell contends

that it was incumbent upon Labowitz to prove that Judsen was

aware of all these individuals when she executed the June will.

According to Kiddell, even Dunston had no knowledge of the

Judsen’s family members because he was not aware of the April

will.

     Kiddell does not challenge the sufficiency of the evidence

to sustain the jury verdict.    Instead, by challenging the

circuit court’s refusal to sustain her motion to strike

Labowitz’ evidence, Kiddell contends that Labowitz failed to

establish a prima facie case of testamentary capacity because he

failed to prove that Judsen knew the natural objects of her

bounty.   See Costner v. Lackey, 

, 

 (1982) (“In considering the motion to strike the

plaintiffs’ evidence, the trial court was not sitting as the

fact finder but was ruling on a matter of law to determine

                                 22
whether the [plaintiffs] had made out a prima facie case.”).

When considering such a motion to strike, a trial court must

review the evidence in the light most favorable to the non-

moving party.    Baysden v. Roche, 

, 

 (2002).   The same standard applies to our review of the

trial court’s decision on the motion to strike.      

, 

.

     Generally, “[t]estamentary capacity is the term used to

describe the degree of mental capacity required for the valid

execution of a will.”    Gibbs, 

, 

.

Such capacity exists, if at the time a will is executed, the

testator is " '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.' "    Weedon, 283 Va. at 252, 720 S.E.2d

at 558 (2012) (quoting Tabb v. Willis, 

, 

 (1931)).   The time of a will’s execution “is the

critical time for determining testamentary capacity.”      Thomason

v. Carlton, 

, 

 (1981); accord

Parish v. Parish, 

, 

 (2011).

The testimony of witnesses present at the time of execution is

entitled to “the greatest consideration” on the issue of a

testator’s mental capacity.    

    “[I]n determining the mental

capacity of a testator, great weight is to be attached to the

                                 23
testimony of the draftsman of the will, of the attesting

witnesses, and of attending physicians."   Hall v. Hall, 

, 

 (1943); accord Parish, 

, 

.

     According to Dunston, who drafted the June will and

witnessed its execution, Judsen fully understood that she was

executing a will.   He described Judsen as knowing her property,

the natural objects of her bounty, and her wishes for the

disposal of her assets.   The two paralegals from his office, one

who served as a witness to the execution of the June will and

the other who served as the notary public, agreed.   Both

testified that they would not have witnessed or notarized the

will if they had doubted that Judsen understood what she was

doing or if she had seemed confused.

     Furthermore, Dunston testified that he asked Judsen if she

wished to include any family members as beneficiaries and she

responded “no.”   She did, however, leave a cash gift and her dog

to Laurie, and she requested that the bequest to the “Leukemia &

Lymphoma Society Inc.” be made in the name of her mother.

Moreover, both Laurie and Labowitz testified that Judsen became

angry with Laurie when she asked Labowitz to have Judsen

substitute him for her as Judsen’s attorney in fact.

     This evidence, however, was in conflict with the testimony

of Dr. Salhan and Dr. Hyde.   Both opined that on June 15, 2010,

                                24
Judsen was not capable of making decisions about her property.

When a conflict exists in the “testimony on a material point, or

if reasonably fair-minded [persons] may differ as to the

conclusions of fact to be drawn from the evidence, or if the

conclusion is dependent on the weight to be given the

testimony,” a jury issue exists.       State Farm Mut. Auto. Ins. Co.

v. Davies, 

, 

 (1983)

(internal quotation marks omitted); accord Cohn v. Knowledge

Connections, Inc., 

, 

 (2003);

O’Brien v. Everfast, Inc., 

, 

(1997).   Thus, the circuit court did not err by refusing to

strike Labowitz’ evidence and, instead, allowing the issue of

testamentary capacity to be decided by the jury.

                            III. CONCLUSION

     The circuit court did not err in granting Instructions 8

and 9, nor did it err in refusing to grant Kiddell’s motion to

strike Labowitz’ evidence.    Therefore, we will affirm the

circuit court’s judgment.

                                                             Affirmed.



CHIEF JUSTICE KINSER, with whom JUSTICE LEMONS and JUSTICE MIMS
join, concurring in part and dissenting in part.

     In Kavanaugh v. Wheeling, 

, 

 (1940),

this Court held that if a presumption "is rebutted or overcome


                                  25
by substantial evidence showing the true facts to be to the

contrary, the presumption disappears."       

, 

.       The majority does not disagree with this principle.

Citing Kavanaugh, the majority, nevertheless, concludes that the

presumption of testamentary capacity does not disappear unless,

as a matter of law, no rational finder of fact could find that

the presumption has not been rebutted. 1     Continuing, the majority

concludes that because the evidence presented by the opponents

of the will did not establish the testator's incapacity as a

matter of law, it was not sufficient to rebut the presumption.

Finally, the majority holds that if the evidence is in

equipoise, the presumption of testamentary capacity "comes to

the proponent's rescue, allowing him to prevail."

       Under the majority's construct, the presumption remains in

the case as positive evidence to be weighed in determining

whether the proponent has carried the ultimate burden of proving

testamentary capacity by a preponderance of the evidence unless

the opponent has established testamentary incapacity as a matter

of law.       In my view, that test for determining when the

presumption of testamentary capacity disappears is inconsistent

with the principle stated in Kavanaugh.       Moreover, a finding

that the opponent of a will has proven testamentary incapacity

       1
       The decision in Kavanaugh does not hold that a presumption
disappears only when rebutted "as a matter of law."


                                    26
as a matter of law means that no rational fact finder could find

the existence of testamentary capacity when the will was

executed and judgment must therefore be entered in favor of the

opponent.   Furthermore, assuming the majority is correct in its

conclusion that, unless the opponent establishes testamentary

incapacity as a matter of law, the presumption of testamentary

capacity remains as evidence in the case and aids the proponent

in carrying the ultimate burden of persuasion, Instructions 8

and 9 did not instruct the jury accordingly.   The majority,

nevertheless, holds that the circuit court did not err by giving

Instructions 8 and 9.

     Unlike the majority, I believe that the presumption of

testamentary capacity disappears when an opponent goes forward

with evidence sufficient to rebut the presumption.   In my view,

the presumption is not evidence for a jury to consider.    Thus, I

respectfully concur in part and dissent in part. 2

     In a will contest, a presumption of testamentary capacity

arises when the proponent of a will proves compliance with all

statutory requirements for the valid execution of the will.

Gibbs v. Gibbs, 

, 

 (1990).

"The primary significance of a presumption is that it operates


     2
       I concur with part II, section B. of the majority opinion
and agree that the circuit court did not err by denying the
opponents' motion to strike the evidence.


                                27
to shift to the opposing party the burden of producing evidence

tending to rebut the presumption."     Martin v. Phillips, 

, 

 (1988).    To rebut the presumption

of testamentary capacity, the opponent of the will must go

forward with evidence sufficient to rebut the presumption.

Gibbs, 

, 

.    When "the facts which

are required to give rise to the presumption are proven, the

presumption must be applied (the presumed fact must be assumed

to have been proven) until evidence sufficient to overcome the

presumption and prove the contrary shall have been introduced."

Simpson v. Simpson, 

, 

 (1934)

(emphasis added).

     As we explained in Kavanaugh, a presumption disappears when

evidence sufficient to rebut it is introduced.    

,

.    There, a plaintiff sought to recover damages

for personal injuries sustained when an automobile owned by

defendants was negligently operated by their employee.     

, 

.    The defendants asserted that, at the time

of the accident, the employee was not operating the vehicle

within the scope of his employment but rather was using it for

his own "mission."    

   The plaintiff argued that certain

evidence adduced at trial, along with "the prima facie

presumption that the automobile was being operated in the

business of its owners," was sufficient to present to the jury

                                  28
the question whether the employee was acting within the scope of

his employment at the time of the accident. 

, 

.

     We concluded that the trial court erred by failing to

sustain a motion to strike at the close of the evidence.

Discussing the presumption that "proof that [an] automobile was

owned by [a] defendant establishes a prima facie case that the

automobile was being operated by the defendant or someone for

him, under circumstances making him liable" for injuries

sustained by the negligent operation of the vehicle, we

explained that the prima facie case was "merely an inference or

presumption that may be rebutted, with the burden of overcoming

it resting upon the defendant."    

, 

.

Continuing, we stated:

          This prima facie presumption, like other
     presumptions, cannot stand in the face of
     positive facts to the contrary. . . . Therefore,
     if the presumption thus created is rebutted or
     overcome by substantial evidence showing the true
     facts to be to the contrary, the presumption
     disappears. Presumptions give way to ascertained
     or established facts.

, 

.

     In other words, " '[p]resumptions are indulged in to supply

the place of facts; they are never allowed against ascertained

and established facts.   When these appear, presumptions

disappear.' "    Schmitt v. Redd, 

, 

 (1928) (quoting Lincoln v. French, 

(1882)).    See also Virginia Birth-Related Neurological Injury

Comp. Program v. Young, 

, 

 (2001) (explaining that, under one theory, a presumption

disappears if evidence is produced to rebut the presumption); In

re Mid-South Towing Co., 

 (5th Cir. 2005)

("Evidentiary presumptions . . . are designed to fill a factual

vacuum.    Once evidence is presented . . . presumptions become

superfluous because the parties have introduced evidence to

dispel the mysteries that gave rise to the presumptions.");

Hertz v. Record Publ'g Co., 

 (3d Cir. 1955)

(holding that a presumption "disappears when contrary evidence

of the fact in issue is introduced"); Richmond Sand & Gravel

Corp. v. Tidewater Constr. Corp., 

 (4th Cir.

1948) ("The presumption is not evidence for the consideration of

the jury . . . and once rebutted in either of these fashions,

disappears from the case."); Heffenger v. Heffenger, 

 (N.H. 1938) ("When there is either evidence, or an inference

from evidence, bearing upon the issue of a testator's intention

to include or exclude a particular item of property from the

terms of his will the presumption against partial intestacy

disappears."); Dromgoole v. White, 

 (N.Y.

App. Div. 1963) (A "presumption is not evidence but serves in

place of evidence until the opposing party comes forward with

                                 30
his proof, whereat it disappears.     It has no weight as evidence

and is never to be considered in weighing evidence."); but cf.

City of Hopewell v. Tirpak, 

, 

 (1998) (discussing "three . . . presumptions in

Virginia law that have the effect of shifting both the burdens

of production and persuasion with regard to a particular factual

issue").

       Contrary to the majority and Kenneth E. Labowitz, the

proponent of the will at issue, our decisions in Tate v.

Chumbley, 

, 

 (1950); Jenkins v. Trice,

, 

 (1929); Rust v. Reid, 

, 

 (1918); Huff v. Welch, 

, 

 (1913);

and Hopkins v. Wampler, 

, 

 (1908), did not

address, much less answer, the question whether the presumption

of testamentary capacity disappears when rebutted by sufficient

evidence of incapacity or as the majority concludes, when the

opponent establishes the testator's incapacity as a matter of

law.    Quoting jury instructions from those cases, the majority

states that "this Court has a long history of approving jury

instructions on the presumption of testamentary capacity."

       Instructions in those cases did tell the jury that a

presumption exists in favor of a testator's capacity and that

the presumption was to be considered in determining competency.

However, in all those cases, this Court discussed jury

                                 31
instructions to address issues different than the one now before

us.   Not one of those cases even tangentially involved the

question whether the presumption of testamentary capacity

disappears when rebutted by sufficient evidence of incapacity.

The majority does not claim otherwise, nor can it.     Thus, the

mere fact that the instructions were given and quoted with

approval is not dispositive in the instant case.   See Gibbs, 

, 

 (stating that the fact an

instruction similar to one challenged on appeal was given in

another case was "not instructive in the instant case").    Any

suggestion otherwise cannot stand in the face of our cases that

have dealt specifically with rebuttable presumptions and

recognize that they disappear when rebutted.   See Kavanaugh, 

, 

 (holding that "if the presumption

. . . created is rebutted or overcome by substantial evidence

. . . , the presumption disappears"); Simpson, 

,

 (holding that "the presumption must be applied

(the presumed fact must be assumed to have been proven) until

evidence sufficient to overcome the presumption and prove the

contrary shall have been introduced"); Schmitt, 

,

 (" 'Presumptions are indulged in to supply the

place of facts; they are never allowed against ascertained and

established facts.   When these appear, presumptions

disappear.' ") (quoting Lincoln, 

).

                                32
     Moreover, Instructions 8 and 9 are different from those

given in Tate, Jenkins, Rust, and Huff.   Those instructions told

the jury to consider the presumption when determining the

question of competency.   In contrast, Instructions 8 and 9 did

not inform the jury that it should consider the presumption in

determining whether Labowitz, as the proponent of the will, met

his burden of proving testamentary capacity by a preponderance

of the evidence.   Instead, Instruction 8 informed the jury that

Labowitz was entitled to a presumption that the testator had

testamentary capacity at the time she executed the will at

issue, that Laurie Kiddell and LeAnn Kiddell (collectively

referred to as "Kiddell"), must introduce evidence "sufficient"

to rebut the presumption, and that, if Kiddell did so, Labowitz

had the burden to prove testamentary capacity by the greater

weight of the evidence.   Instruction 9 told the jury to decide

in favor of Kiddell, if they "introduced evidence sufficient to

rebut the presumption of testamentary capacity" and if Labowitz

then "failed to prove by the greater weight of the evidence"

that the testator had testamentary capacity when she executed

the will.   The instructions further told the jury to find in

favor of Labowitz if Kiddell failed to rebut the presumption of

testamentary capacity or if Labowitz proved testamentary

capacity "by the greater weight of the evidence."




                                33
     Thus, contrary to the majority's assertion, nothing in

Instructions 8 or 9 was the "functional equivalent" of the

instructions recited in our prior cases because those

instructions did not inform the jury that the opponent had to go

forward with evidence to rebut the presumption of testamentary

capacity, nor did they tell the jury to decide if the opponent

had rebutted the presumption of testamentary capacity.

Furthermore, contrary to the majority's construct of the role

the presumption plays, Instructions 8 and 9 did not tell the

jury that if the evidence is in equipoise, the presumption tips

the scales in favor of Labowitz and permits a finding that he

proved testamentary capacity by a preponderance of the evidence.

Yet, this is one of the reasons offered by the majority to

explain why a jury must be instructed about the presumption of

testamentary capacity.   Thus, using the majority's rationale,

the circuit court erred by giving Instructions 8 and 9.   But,

the majority does not so hold.   Consequently, trial courts in

the future will not know whether to instruct a jury in a will

contest using instructions like those in our prior cases or

instructions similar to Instructions 8 and 9.

     In my view, the presumption of testamentary capacity arose

when Labowitz demonstrated that the testator executed the will

at issue in accordance with the requirements of Code § 64.1-49.

The presumption remained in the case "until evidence sufficient

                                 34
to overcome the presumption and prove the contrary [was]

introduced."    Simpson, 

, 

.   Thus,

Kiddell had to go forward with evidence of testamentary

incapacity sufficient to rebut the presumption. 3   If Kiddell

failed to do so, then the presumption remained and Labowitz was

entitled to judgment in his favor at that point in the trial. 4

     When Labowitz moved to strike Kiddell's evidence, arguing

that the opponents had failed to rebut the presumption of

testamentary capacity, the circuit court stated that "the only

question is whether or not there is evidence presented by the

opponents of the will to rebut the presumption of capacity. And

the [c]ourt is going to find that that burden has been met by

the [opponents] and therefore the motion to strike will be

denied." 5   Thus, as explained by this Court in both Kavanaugh and


     3
       Kiddell had to present "sufficient" evidence, not merely
"any" evidence, of incapacity.
     4
       A presumption is not rebutted and prevails when "evidence
of equally credible witnesses for and against the presumption is
equally balanced." Rowe v. Rowe, 

, 

 (1925); see also Nelms v. Nelms, 

, 

 (1988).
     5
       The majority states that it is unclear whether the circuit
court concluded that Kiddell had rebutted the presumption
because of its later decision to give Instructions 8 and 9.
During the colloquy regarding jury instructions, the circuit
court stated it had not ruled that the opponents rebutted the
presumption but had ruled that there "was . . . sufficient
evidence on the question . . . of whether you rebutted it. If
[the opponents] had [not], this case would have been over this
morning." The court's last statement is unquestionably correct.
Moreover, under our prior decisions, a finding of sufficient
evidence to rebut the presumption of testamentary capacity means
                                 35
Simpson, the presumption of testamentary capacity disappeared at

that point.   Accordingly, the circuit court erred by granting

Instructions 8 and 9.   See Diederich v. Walters, 

 (Ill. 1976) (once evidence opposing the presumption

comes into the case, the presumption ceases to operate,

"therefore eliminat[ing] the need for any instruction to the

jury regarding the presumption"); Breadheft v. Cleveland, 

, 663 (Ind. 1915) ("The ordinary function of most so-

called presumptions of law, as they relate to the law of

evidence, is to cast on the party against whom the presumption

works, the duty of going forward with evidence, and when that

duty is performed the presumption is functus officio and has no

proper place in the instructions to the jury."); United Missouri

Bank v. March, 

 (Mo. Ct. App. 1983)

("[W]hen some substantial evidence is produced by the party

presumed against, 'however slight' the presumption disappears

and the trier of facts receives the issue free of the

presumption.").

     Finally, I point out that, under the majority's decision

today, a jury will determine whether the opponent of a will has


the presumption is rebutted. Gibbs, 

, 

. The majority's conclusion that the circuit court's
denial of Labowitz's motion to strike "amounted only to a ruling
that Kiddell's evidence could potentially rebut the presumption"
begs the question whether a trial court or a jury decides if the
opponent of a will has rebutted the presumption of testamentary
capacity. In my view, a trial court makes that determination.
                                36
rebutted the presumption of testamentary capacity.    The

majority, however, gives no guidance as to the definition of the

legal standard of "sufficient evidence." 6   So, each jury in a

will contest will have to decide what is meant by "evidence

sufficient to rebut the presumption of testamentary capacity."

I fear that different juries will use varying definitions.    Even

the circuit court in ruling on Labowitz's motion to strike noted

the absence in our jurisprudence of a definable evidentiary

standard to employ in deciding if the opponent of a will has

rebutted the presumption of testamentary capacity.    Perhaps the

absence of such guidance is indicative of the fact that a jury

in such a case does not decide whether a presumption, operating

as a rule of law, has been rebutted.   See Martin v. Phillips,

, 

 (1988) ("A presumption is

a rule of law . . . .").

     For these reasons, I conclude that the circuit court erred

by giving Instructions 8 and 9.    Instructions 5 and 6 correctly




     6
       The majority states that the phrase "sufficient evidence"
has a commonly accepted definition and that a trial court,
therefore, does not need to instruct a jury as to its meaning.
But if a jury is instructed as to the meaning of the phrase
"greater weight of the evidence" or "preponderance of the
evidence" and is also told that the opponent of a will must
present "sufficient evidence" to rebut the presumption of
testamentary capacity, it is unclear that a jury will know that
it should apply its common understanding of the phrase
"sufficient evidence."
                                  37
stated the applicable law. 7   I respectfully concur in part and

dissent in part, and I would remand this case to the circuit

court for a new trial.




     7
       Instructions 5 and 6 are set forth in 2 Virginia Model
Jury Instructions - Civil, No. 48.040, at 48-19 (repl. ed.
2011).
                                 38
JUSTICE McCLANAHAN, concurring.

     I agree with the majority's holding that the circuit court

did not err in granting Instructions 8 and 9 or in refusing to

grant Kiddell's motion to strike Labowitz's evidence.   I write

separately because I believe it is unnecessary for us to

determine whether the evidence in this case was sufficient to

rebut the presumption of testamentary capacity as a matter of

law because Kiddell did not move the circuit court for such a

determination.

     When Kiddell objected to Instructions 8 and 9, she argued

that in denying Labowitz's motion to strike, the circuit court

ruled that the presumption of testamentary capacity had been

rebutted as a matter of law.   As the majority states, however,

the circuit court did not rule that the presumption had been

rebutted.   Rather, the circuit court ruled that Kiddell had

presented sufficient evidence to permit the jury to determine

whether the presumption had been rebutted.   Furthermore, as the

majority explains, when the circuit court denied Labowitz's

motion to strike, it could not have ruled that the presumption

had been rebutted as a matter of law since such a ruling would

have amounted to the granting of a motion for partial summary

judgment at trial.   See Code § 8.01-378 (circuit court may only

enter partial summary judgment when it has granted a motion to


                                  39
strike).      Thus, the only ruling made by the circuit court on the

issue of whether Kiddell rebutted the presumption of

testamentary capacity was that Kiddell presented sufficient

evidence to submit this issue to the jury.

     Kiddell did not move for partial summary judgment on the

issue of whether she rebutted the presumption as a matter of

law, but only opposed the motion to strike her evidence. 1

Therefore, the issue of whether Kiddell rebutted the presumption

as a matter of law was not before the circuit court and is not

before this Court.     Since the circuit court did not rule, and

indeed could not have ruled, that the presumption was rebutted

as a matter of law when it denied Labowitz's motion to strike, I

would hold that it was not error for the circuit court to

instruct the jury regarding the presumption of testamentary

capacity. 2    However, because Kiddell did not move for partial


     1
       In fact, had Labowitz simply not made the motion to
strike, the issue of whether Kiddell presented sufficient
evidence to rebut the presumption of testamentary capacity would
not have been addressed by the court prior to its instructions
to the jury.
     2
       I agree with the majority that the content of instructions
8 and 9 was consistent with instructions on the presumption of
testamentary capacity that this Court has previously approved
and, thus, was an "accurate statement of the relevant legal
principles." Hancock-Underwood v. Knight, 

, 

 (2009). See, e.g., Tate v. Chumbley, 

, 

 (1950); Culpepper v. Robie, 

, 

 (1930); Jenkins v. Trice, 

, 

 (1929); Green v. Green's Ex'rs, 

, 

 (1928); Rust v. Reid, 

,

 (1918); Huff v. Welch, 

, 78
                                   40
summary judgment on the issue of whether she rebutted the

presumption as a matter of law, I would not address whether

Kiddell, in fact, rebutted the presumption as a matter of law.




S.E. 573, 757, 578 (1913) (holding that the trial court did not
err in giving instruction informing jury that in “all cases
there is an existing presumption in favor of testator’s sanity
and capacity, which is to be taken into consideration by the
jury in determining the question of competency).



                               41