Harrison County 16-C-255
Richard Vincent Cantarelli, by counsel Stephen A. Wickland,
appeals the Circuit Court of Harrison County's August 29,
2018, order denying his motion to alter or amend the
court's grant of summary judgment in respondent's
favor on his tortious interference with a testamentary
bequest claim and attempt to set aside his mother's will.
Respondent Myra Jan Grisso, by counsel Daniel C. Cooper and
Jamison H. Cooper, filed a response, and petitioner filed a
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.
March or April of 2016, respondent contacted Scott Wilson, an
attorney, regarding obtaining a new will for her mother (the
"decedent"). The decedent last executed a will in
1990 that provided that the parties, the decedent's
children, would share equally in the decedent's estate;
however, because petitioner previously received the family
dental business, the decedent wished to leave respondent her
home. Despite respondent's protestations that such an
arrangement was "not going to work" and her
attempts to "talk [her] mother out of it," the
the initial phone call with Mr. Wilson, respondent went to
his office on April 19, 2016, to further discuss preparation
of the new will. The decedent was unable to accompany
respondent, however, due to her physically frail state. Mr.
Wilson's first draft divided the decedent's estate
equally between the parties, but when respondent took this
draft to the decedent, the decedent reiterated that because
petitioner received the business, respondent was to receive
the home. Accordingly, Mr. Wilson prepared a second draft
leaving the decedent's home to respondent.
preparing the second draft, Mr. Wilson informed respondent
that he needed to meet with the decedent. Mr. Wilson said to
respondent, "you know, I don't want you there. I
don't want to have any situation where, you know, that
you're there sitting, trying to influence anything that
she does." Therefore, respondent was not present during
Mr. Wilson's meeting with the decedent. During that
meeting, on April 29, 2016, Mr. Wilson and the decedent
"chit-chatted a little bit," and then Mr. Wilson
discussed "all of the provisions in the will" to
"ascertain that [the decedent] was aware of what we were
doing." Mr. Wilson stated that he met with the decedent
for "at least an hour to go through everything."
When Mr. Wilson and the decedent reached the provision in the
will regarding the residence, Mr. Wilson recounted to the
decedent that his first draft divided the estate equally, but
that his later understanding was that the decedent wished to
leave her home to respondent exclusively. Mr. Wilson stated
that the decedent "more than once, said, 'Yes, I
want [respondent] to get the house. [Petitioner] got the
business, I want [respondent] to get the house.'"
Although Mr. Wilson informed the decedent that "this is
going to cause some problems . . . from what [respondent] has
indicated to me," the decedent was insistent: "He
[petitioner] got the business, I want her [respondent] to get
the house." Accordingly, the decedent executed the will,
and Mary Jo Strugarek and Sharon Morgan, two of the
decedent's caretakers, witnessed the will's
Wilson, who has prepared between two hundred and four hundred
wills over his forty-two years of practice, believed the
decedent to be of "sound and disposing memory. I thought
she understood what she was wanting to do. . . . [S]he was
well aware and she remembered things. And so I felt that she
was mentally capable of executing a will at the time."
Although the decedent was physically "very, very
frail," Mr. Wilson believed that mentally "she
understood what she was doing and was competent, in [his]
opinion, to execute a will." Additionally, Mr. Wilson
informed Ms. Strugarek and Ms. Morgan that, in witnessing the
decedent's execution of the will, they were
"swearing that . . . [the decedent] is of sound mind and
disposing memory and over the age of [eighteen]." The
caretakers indicated their willingness to sign as witnesses,
and the three individuals "discussed the fact that, you
know, they had been her long-time caregivers and that they
felt comfortable that she was able to execute the will, that
she understood what she was doing."
Morgan cared for the decedent for approximately six months to
one year prior to the decedent's death. On the date the
decedent executed her will, Ms. Morgan recalled her being
"alert . . . she was definitely-was alert." To Ms.
Morgan, the decedent appeared able to "know what she
wanted to do" and did not have difficulty voicing her
desires. Ms. Morgan had previously cared for others with
dementia, including some who were not of sound mind to
execute a will, but she believed the decedent to be of sound
mind when she executed her will. Ms. Morgan also stated that
she had heard the decedent express her intention to make a
new will, outside of respondent's presence: "She was
going to call her lawyer and have the will changed. . . .
[S]he wanted [respondent] to have the house and the stuff in
there. . . . She said because her son got the business and
[respondent]-she wanted [respondent] to have the house."
Strugarek cared for the decedent for approximately one to one
and a half years before the decedent's death. On the date
the decedent executed her will, Ms. Strugarek recalled Mr.
Wilson coming to the decedent's home with a notary. Ms.
Strugarek stated that Mr. Wilson "went over the will
with her" and "read it all to her," and she
believed the decedent was "in her right mind" when
she executed the will. Ms. Strugarek was asked, "[A]t
the time that she was expressing her desires with regard to
the will, she didn't seem confused to you?" Ms.
Strugarek responded, "Not at all" and agreed that
the decedent "seemed to know precisely what she
wanted." Ms. Strugarek also recalled the decedent
stating that "she wanted [respondent] to have the house.
. . . She said it was only fair that [respondent] get the
house because [petitioner] got the company. . . . She was
strong on him-on [respondent] getting the house and him
getting the company."
decedent passed away on June 3, 2016. On July 8, 2016,
petitioner filed a complaint against respondent seeking to
set aside the decedent's will. Petitioner alleged that the
decedent lacked testamentary capacity when she executed the
will and that respondent exerted undue influence in procuring
that will. Petitioner also asserted claims for tortious
interference with his inheritance by respondent due to her
"undue influence and duress" and breach of
parties filed competing motions for summary judgment. In
support of his motion and, in particular, his assertion that
the decedent lacked testamentary capacity, petitioner relied
on a May 24, 2013, determination by Dr. Stephen Fryer that
the decedent was "incapacitated" as defined by West
Virginia Code § 16-30-3(1), within the Health Care
Decisions Act. In making this determination, Dr. Fryer
listed the cause as Alzheimer's disease, indicated that
the nature included "impaired cognition, poor short term
memory," and stated that the duration would be for the
decedent's lifetime. As a result of this incapacity,
respondent was appointed as the decedent's healthcare
surrogate. Petitioner also relied on other medical documents
in arguing that the decedent's Alzheimer's did not
improve and that her "poor reasoning and short-term
memory loss continued until her death."
22, 2018, the circuit court granted respondent's motion
for summary judgment, in part. The court concluded that the
decedent's will was valid as she possessed testamentary
capacity at the time she executed it and petitioner was
unable to establish a genuine issue of material fact as to
his claim of undue influence. The court supported its
decision with references to Mr. Wilson's and the
attesting witnesses' testimony. It further found that the
"incapacity" determination for making healthcare
decisions was remote in time to the execution of the will and
had no bearing on a determination of testamentary capacity.
Because petitioner's claim of tortious interference was
predicated on respondent's alleged undue influence over
the decedent, and because petitioner had produced no evidence
of undue influence, the court also granted summary judgment
in respondent's favor on that claim. The court, however,
found that there were genuine issues of material fact
regarding the remaining breach of fiduciary duty claim. The
parties later resolved that claim, and it was dismissed by
agreed order. The circuit court denied petitioner's
motion to alter or amend its order granting respondent
summary judgment on August 29, 2018, and this appeal
Court's review of a circuit court's entry of summary
judgment is de novo. See Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We have
instructed 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."
Id., syl. pt. 2 (citations omitted). Further,
[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.
Id., syl. pt. 4.
asserts three assignments of error on appeal. First, he
argues that the decedent lacked free agency, rendering her
will invalid. "Where legal capacity is shown, and the
testator acts freely, the validity of the will cannot be
impeached, however unreasonable, imprudent or unaccountable,
it may seem to the jury or to others." Syl. Pt. 3,
Nicholas v. Kershner, 20 W.Va. 251 (1882).
Petitioner maintains that the decedent's free agency was
"destroyed when the beneficiary direct[ed] the
preparation of" the decedent's will.
support, petitioner cites Vaupel v. Barr, 194 W.Va.
296, 299, 460 S.E.2d 431, 434 (1995), where this Court found
no undue influence where there was "no evidence even
remotely suggesting that the defendant actively
procured" the will. Petitioner argues that, in contrast,
respondent actively procured the decedent's will. He also
cites Greer v. Vandevender, No. 16-1228, 2018 WL
798419 ( W.Va. Feb. 9, 2018)(memorandum decision), in which
we found no evidence of undue influence where, at the time
the deceased executed her will, she was living alone, signing
her own checks, and conveying other property. The decedent
here, however, was dependent on others. Lastly, petitioner
distinguishes Printz v. Printz, No. 13-0495, 2014 WL
1672984 ( W.Va. Apr. 25, 2014)(memorandum decision). In that
case, the attorney who prepared the deceased individuals'
wills had known them for twenty years and met with them to
discuss their respective wills. 2014 WL 1672984, at *1.
Petitioner claims that here, on the other hand, the decedent
"did not have the luxury of discussing her will with an
attorney of her choice."
undue influence is asserted, "to avoid a will, [it] must
be such as overcomes the free agency of the testator at the
time of actual execution of the will." Syl. Pt. 10, in
part, James v. Knotts, 227 W.Va. 65, 705 S.E.2d 572
(2010) (citation omitted). A will will not be set aside
"on evidence tending to show only a possibility or