Homer Lee Merritt, Glen Dale Merritt, and Betty Jo Scott, Plaintiffs Below, Petitioners
Robert Wolford, as executor of the last will and testament of Glenn Merritt Sr., deceased, Defendant Below, Respondent
Homer Lee Merritt, Glen Dale Merritt, and Betty Jo Scott, by
counsel Mark Hobbs, appeal the Circuit Court of Mingo
County's July 18, 2016, order granting respondent Robert
Wolford's motion for summary judgment and dismissing
petitioners' challenge to the last will and testament of
Glen Merritt Sr. Respondent, by counsel W. Thomas Ward, filed
a response. On appeal, petitioners argue that the circuit
court erred in granting respondent's motion for summary
judgment because a genuine issue of material fact existed.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
October of 2015, Glen Merritt Sr. ("the decedent")
died testate. Respondent Robert Wolford was the duly
appointed executor of the decedent's estate. The decedent
was survived by several individuals, including his children
Homer Lee Merritt, Glen Dale Merritt, and Betty Jo Scott.
According to the record, the decedent's last will and
testament, dated November 26, 2013, was admitted to the
record of the Office of the County Commission of Mingo
December of 2015, petitioners filed a civil action against
respondent seeking to impeach the will at issue, as the will
left the bulk of the decedent's estate to his stepchild,
Teresa Wolford, and her husband, Robert Wolford. According to
petitioners, the will at issue essentially disinherited them.
February of 2016, the parties took the deposition of attorney
Lawrence R. Webster, who conducted a post-execution interview
of the decedent with respect to the will in question. That
same month, the parties took the depositions of attorney Greg
Smith, who prepared the will in question, and Dr. Brian
Francis, who provided medical care to the decedent.
April of 2016, respondent filed a motion for summary
judgment. In response, petitioners submitted the affidavit of
Richard Stanley Thomas, in which Mr. Thomas stated that he
"notic[ed] a decline in [the decedent's] mental
ability including his memory loss and mental confusion
beginning in January/February 2012." Petitioners also
offered the affidavits of petitioner Betty Jo Scott and her
husband Roger Scott. According to these affidavits, the
decedent was "not in his right mind" shortly after
the death of his wife, which occurred roughly twenty-three
days prior to the execution of his will.
the circuit court granted respondent's motion by order
entered in July of 2016. According to the circuit court, Dr.
Francis, who cared for the decedent prior to and at the time
of the execution of the will in question, testified that
there was never a time that he held the medical opinion that
the decedent could not care for himself or make medical and
financial decisions. The circuit court further found that Dr.
Francis testified that the decedent "understood who his
children were, what his estate consisted of and was of sound
mind and capable of making a disposition of his estate."
Moreover, Mr. Smith, who had an ongoing attorney-client
relationship with the decedent, testified that he prepared
the will in question and that the legal requirements for
execution were met. Mr. Smith further testified that the
decedent was of sound mind and able to understand his estate,
heirs, and the specific intentions of his will. Finally, the
circuit court found that Mr. Webster's testimony
supported the validity of the will. According to the circuit
court, Mr. Webster conducted an interview with the decedent
on July 9, 2015, "for the express purpose of addressing
[the decedent's] concerns that somebody might attack his
[w]ill." Ultimately, based on testimony from these
individuals, the circuit court found that "on November
26, 2013, and for a period of several years prior thereto,
[the decedent] was a man of sound mind, under no undue
influence, capable of making his own medical and financial
decisions, knowledgeable of the contents of his estate and
capable of directing to whom he wanted his estate to pass
upon his death." Accordingly, the circuit court granted
respondent's motion for summary judgment. It is from this
order that petitioners appeal.
circuit court's entry of summary judgment is reviewed
de novo." Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Our review
is guided by the principle that
"'[a] motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact
to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.' Syllabus Point
3, Aetna Casualty & Surety Co. v. Federal Insurance
Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963)." Syllabus Point 1, Andrick v. Town of
Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl.
Pt. 2. Furthermore,
"[s]ummary judgment is appropriate where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove."
Syllabus point 4, Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994).
Syl. Pt. 5, Toth v. Bd. of Parks & Recreation
Comm'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003). Upon
our review, we find no error below.
appeal, petitioners argue that they established a genuine
issue of material fact through the submission of affidavits
from Richard Stanley Thomas, Betty Jo Scott, and Roger Scott.
According to petitioners, these affidavits created genuine
issues of material fact as to the decedent's requisite
mental intent, testamentary capacity, and undue influence.
Essentially, petitioners argue that these ...