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Casdorph-McNeil v. Casdorph

Supreme Court of Appeals of West Virginia

September 9, 2019

Marsha A. Casdorph-McNeil, Petitioner
v.
Mark Casdorph, Respondent

          (Kanawha County 17-AA-69)

          MEMORANDUM DECISION

         Petitioner Marsha A. Casdorph-McNeil, by counsel Gregory E. Elliott, appeals the Circuit Court of Kanawha County's April 26, 2018, order affirming the County Commission of Kanawha County's ("County Commission") order finding that certain jointly-held accounts were probate assets, ordering present day value calculations of probate assets, and charging missing probate assets against petitioner's distribution. Respondent Mark Casdorph, by counsel Charles R. Bailey and Adam K. Strider, filed a response.

         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.

         The parties to this appeal are brother and sister. On January 6, 1997, their aunt, Mary Lola Hawkins, died testate. Frances H. Casdorph ("Frances"), Ms. Hawkins's sister and the parties' mother, was confirmed as executrix of Ms. Hawkins's estate (the "Hawkins estate"), and she was its sole beneficiary.

         On March 24, 1997, the parties' father, Jack N. Casdorph, died testate. Frances, the sole beneficiary of Jack N. Casdorph's estate (the "Jack Casdorph estate"), declined to serve as executrix, and petitioner was appointed in her stead. Petitioner was also appointed as administratrix of the Hawkins estate after Frances no longer wished to serve as executrix.

         On March 17, 1999, Frances died testate. The parties were the beneficiaries of her estate (the "Frances Casdorph estate"), and petitioner was appointed executrix. Frances's will provided that the parties were to share equally certain real estate located in Elkview, West Virginia, with one-third of the residue of the estate distributed to respondent and two-thirds to petitioner. Among other assets, Frances held accounts at a credit union containing $155, 571.19 (the "subject accounts"), which were held jointly with petitioner. Following Frances's death, petitioner removed the funds from the subject accounts and placed them into her personal bank account.

         On July 7, 1999, petitioner filed an "Appraisement and Non-Probate Inventory" for the Hawkins estate and the Jack Casdorph estate; however, she took no further action to administer either estate, despite numerous efforts by the Fiduciary Supervisor's Office to contact her and its issuance of multiple summonses.

         Shortly after petitioner was appointed executrix of the Frances Casdorph estate, Craig Kay, attorney for the Frances Casdorph estate, submitted a document titled "Probate Information" to the Fiduciary Supervisor's Office approximating the total value of that estate at $500, 000. Petitioner, however, failed to timely file an appraisement of the Frances Casdorph estate, despite the Fiduciary Supervisor's Office's numerous attempts to contact her and its issuance of a May 15, 2001, letter warning her of possible penalties. The Fiduciary Supervisor's Office also issued a number of summonses directing petitioner to appear at the Fiduciary Supervisor's Office and submit the appraisement and inventory form for the Frances Casdorph estate at the time of appearance. Petitioner never appeared.

         On October 1, 2010, respondent requested petitioner's removal as executrix of the Frances Casdorph estate. By order dated October 19, 2010, the County Commission referred the Frances Casdorph estate to a fiduciary commissioner, who scheduled a hearing on the removal petition for January 13, 2011. Petitioner failed to post the required bond; accordingly, the hearing was canceled, subject to rescheduling should petitioner post the bond. The fiduciary commissioner further advised that failure to post the bond by February 12, 2011, would result in a recommendation to the County Commission that the removal petition be granted. Petitioner failed to post the bond and cooperate with the fiduciary commissioner.

         On January 21, 2011, respondent learned that the Elkview property referenced in Frances's will had been sold for unpaid taxes. Respondent was unable to contact petitioner, so he personally paid $1, 338.98 to redeem the property.

         On May 20, 2011, the County Commission revoked petitioner's appointment as executrix of the Frances Casdorph estate and appointed respondent as executor. The County Commission further ordered petitioner to turn over to respondent all assets, personal property, and financial documents of the Frances Casdorph estate, and to provide an accounting to the Fiduciary Supervisor's Office. Petitioner failed to comply with this order. A summons, dated July 23, 2011, was issued to petitioner directing her to appear at the Fiduciary Supervisor's Office on August 10, 2011, to present a full accounting of the Frances Casdorph estate, but petitioner failed to appear. Petitioner's appointments as administratrix of the Hawkins estate and executrix of the Jack Casdorph estate were also revoked for her failure to properly administer the estates, and respondent was appointed executor.

         On April 26, 2013, respondent filed an "Appraisement and Non-Probate Inventory" for the Frances Casdorph estate listing certain assets, but on October 15, 2013, respondent informed the Fiduciary Supervisor that he was unable to provide an accurate accounting of all three estates, despite his efforts and those of several attorneys and an accountant. Respondent blamed petitioner's inappropriate actions in administering the estates for the confusion regarding the estates and listed a series of concerns, including that $155, 571.19 held by Frances at a credit union (in the subject accounts) was not distributed according to Frances's will and had disappeared, that stock dividend checks were cashed and not distributed in accordance with Frances's will, and that certain oil and gas rights were lost due to petitioner's failure to pay taxes. Respondent sought to have the Frances Casdorph estate again referred to a fiduciary commissioner, and on November 14, 2013, the County Commission referred the Frances Casdorph estate to another fiduciary commissioner. Later, the Hawkins estate and Jack Casdorph estate were also referred to the fiduciary commissioner as all three estates were "inextricably intertwined."

         The fiduciary commissioner held several evidentiary hearings. Primarily, the parties disagreed over the disposition of the subject accounts. Petitioner maintained that because the funds were held in an account jointly titled with Frances, she was entitled to a presumption that these funds were non-probate assets and a gift to her upon Frances's death. See W.Va. Code § 31A-4-33(b). Mr. Kay, the estate's counsel, testified that he met with Frances prior to her death, and his notes from that meeting reflect that Frances informed him that she placed petitioner's name on the subject accounts "as a matter of convenience." Mr. Kay also prepared an "Appraisement and Non-Probate Inventory" for the Frances Casdorph estate, which listed the subject accounts as probate assets. This document was never filed, however.

         The fiduciary commissioner issued her "Recommendation of Fiduciary Commissioner" on July 6, 2016. The fiduciary commissioner concluded that petitioner occupied a confidential and fiduciary relationship with Frances as well as with Jack Casdorph and Mary Lola Hawkins. In support, the fiduciary commissioner noted that petitioner held a medical power of attorney for all three individuals during their lives; she was empowered to act under the three individuals' living wills; she assisted the individuals with errands, including banking matters; and she provided care and assistance during their final illnesses. Moreover, petitioner succeeded to the appointments of administratrix of the Hawkins estate and executrix of the Jack Casdorph estate at Frances's request after Frances, who was suffering the loss of her sister and husband in quick succession, ...


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