Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Greer v. Vandevender

Supreme Court of West Virginia

February 9, 2018

Judy Mae Greer, et. al., Petitioners Below, Petitioner
v.
David Lynn Vandevender and Donna Lee Vandevender, Respondents Below, Respondents

          Pocahontas County 15-C-07

          MEMORANDUM DECISION

         Petitioners Judy Mae Greer, William Charles Vandevender, Judith Kay Newbrough, Daniel T. Vandevender, Dallas E. Vandevender, Jo Ann Rae Giraldi, and Douglas P. Vandevender, by counsel John J. Wallace, IV, appeal the order of the Circuit Court of Pocahontas County that dismissed their claims of tortious interference, undue influence, fraud, and civil conspiracy. Respondents David Lynn and Donna Vandevender, by counsel Jefferson I. Tripplett and Charles R. Tripplett, filed a response, to which petitioner filed a reply.

         This 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.

         This action involves the estate of Mary C. Vandevender ("the decedent"). The decedent's estate mainly consists of an approximately 200-acre family farm ("the farm") located in Pocahontas County, West Virginia. Petitioners and Respondent David Lee Vandevender are the decedent's children. In 1994, respondents entered into a lease agreement for the farm with the decedent and her husband, William Mack Vandevender. Pursuant to the lease, respondents farmed the land and generated income to maintain the property. Following the death of her husband, the decedent became the sole owner of the family farm in fee simple. On April 27, 2006, the decedent executed a will which divided her estate, including the family farm, equally among her children.

         In 2012, the decedent appeared to forget about her will, and requested her son, Petitioner William Vandevender, to take her to get a will prepared. Petitioner William Vandevender informed her that she already had a will prepared, to which she replied, "I did?" The decedent did not ask Petitioner William Vandevender to prepare a will again. In October of 2012, Respondent David Vandevender drafted a hand-written copy of a new will for the decedent. The newly drafted will changed the disposition of the family farm to Respondents David and Donna Vandevender. The new will also contained a provision that Respondents would pay to petitioners $10, 000 for their shares of the farm. Respondent David Vandevender met and reviewed the handwritten draft with Michael Doss, an attorney. The decedent was not present at this meeting.

         On January 7, 2013, respondents took the decedent to Mr. Doss's office for the execution of the new will ("the 2013 will"). As decedent was unable to read at that time due to poor eyesight, Mr. Doss read the draft of the will and hand-written notes provided by respondents regarding the preparation of the will aloud to the decedent. Mr. Doss asserts that this took approximately twenty to thirty minutes. After reading the draft of the 2013 will, Mr. Doss left the room to make amendments, although the record is not clear as to what changes were made. Following this break, the decedent executed the will in the presence of two witnesses, respondents, Mr. Doss, and a notary. The decedent died on April 12, 2014.

         On February 24, 2015, petitioners filed a petition to set aside the will and for other relief. The circuit court dismissed the petition finding that the petition was subject to the six-month statute of limitations contained in West Virginia Code § 41-5-11, because the controversy was a "will contest, " and not a tort action, but permitted the parties to amend the complaint to allow petitioners to file additional claims.[1] In the amended complaint, petitioners asserted claims of undue influence, fraud, tortious interference, and civil conspiracy.

         Petitioners claimed that the decedent's wish was for the farm to be split equally amongst her children. Petitioners claim that in 2000 their father approached the decedent regarding leaving the family farm to respondents in exchange for a payment of $7, 000 to each petitioner. Petitioners assert that the decedent rejected this proposal. Petitioners assert that in 2005 Respondent David Vandevender approached the decedent with a hand-written instrument which would convey the farm to respondents in exchange for purchasing the petitioners' shares of the farm for $8, 000 each. Petitioners contend that the decedent again rejected this offer, and subsequently executed her 2006 will which divided her estate equally among her children. Petitioners assert further that after the execution of the 2013 will, on Thanksgiving Day of that year, the decedent again rejected the idea that respondents should be left the farm, stating, "[Respondent David Vandevender's] trying to get me to sign the farm over to him." When asked if she believed that was fair, the decedent shook her head no.

         Respondents filed an answer to petitioners' complaint. Respondents claim that, prior to his death, the parties' father intended for the farm to go to respondents, and that several of the petitioners were aware of this fact. Respondents assert further that since their father's death, respondents have performed all of the farming operations on the family farm. Respondents contend that "none of their siblings worked the farm with respondents, nor did any of them demonstrate any desire to be involved in operations, maintenance and upkeep of the family farm."

         Following discovery, respondents filed a motion for summary judgment, arguing that there was no genuine issue of material fact regarding the petitioner's claims. Finding that petitioners had not presented sufficient evidence to show a genuine issue of fact regarding their claims of tortious interference, undue influence, fraud and civil conspiracy, the circuit court granted respondents motion for summary judgment, and dismissed petitioners' complaint. In its order, the circuit court held that there was no genuine issue of dispute in this matter. Importantly, the circuit court found that petitioners admitted that they lacked direct evidence that the decedent was incompetent at the time of the execution of the will, that her free agency had been overcome, that the will was obtained by coercion, or that she was unable to resist any coercion or influence. Specifically, the circuit court found that the decedent lived alone in her home until December of 2013, and prior to the execution of the will, into early 2014, the decedent managed her own affairs and signed her own checks. Petitioners now appeal the order of the Circuit Court of Pocahontas County that granted summary judgment to respondents. "A 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).

         Petitioners first argue that the circuit court erred in granting summary judgment, and that direct evidence is not required to prove a claim of undue influence. Petitioners assert that the matter of whether respondents exerted undue influence over the decedent is an issue for the jury to decide, and argue that the circuit court usurped the role of the jury in finding that the decedent "may have simply changed her mind." Petitioners rely upon syllabus point two of Spaur v. Hayes, 147 W.Va. 168, 126 S.E.2d 187 (1962), arguing that "[w]here there is no controversy concerning the actual facts, if different inferences may be drawn therefrom, submission to a jury is required." We disagree and find that petitioners failed to establish a genuine issue regarding the execution of the 2013 will.

         To support their claim of undue influence, petitioners contend that the decedent repeatedly rejected the notion of leaving the farm to respondents, and assert that the decedent stated on more than one occasion that she was afraid of respondents years prior to the execution of the will. We have held that,

"[i]n an action to impeach a will the burden of proving undue influence is upon the party who alleges it and mere suspicion, conjecture, possibility or guess that undue influence has been exercise[d] is not sufficient to support a verdict which impeaches the will upon that ground." Syllabus Point 5, Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603 (1964).

Syl. Pt. 3, Milhoan v. Koenig,196 W.Va. 163, 469 S.E.2d 99 (1996). Further, "'[u]ndue influence, to avoid a will, must be such as overcomes the free agency of the testator at the time of actual execution of the will.' Syllabus Point 5, Stewart v. Lyons, 54 W.Va. 665, 47 S.E. 442 (1903)." Syl. Pt. 10, James v. Knotts, 227 W.Va. 65, 705 S.E.2d 572 (2010). Here, petitioner fails to prove that respondents asserted undue influence over the decedent at the time of the execution of the will. At the time of the execution of the 2013 will, the decedent lived alone, signed her own checks, and conveyed property in a separate matter, despite her ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.