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<p style="text-align: justify;">Parish v. Parish, __ S.E.2d __ (2011)</p>
<p style="text-align: justify;"><strong>Facts. </strong> The decedent, Eugene Neal Parish (“Eugene”), suffered a head and spinal cord injury in 1982 after being struck in the head with a metal pipe while at a bar.  The injury left him paralyzed in his legs and right arm.  Eugene sued the bar and the person who attacked him and recovered $3.5 million.  At the time of his injury, Eugene’s only child, David M. Parish (“David”), was eleven months old.</p>
<p style="text-align: justify;">In 1983, Eugene was declared incompetent in Florida due to encephalopathy (generalized brain dysfunction marked by varying degrees of impairment of speech, cognition, orientation, and arousal).  His wife was appointed as guardian.  For the court to make such an appointment, Eugene had to be shown “incapable of caring for himself or managing his property or ... likely to dissipate or lose his property or inflict harm on himself or others.”  Former Fla. Stat. § 744.331 (as in effect prior to amendment by 1989 Fla. Laws ch. 89-96, § 35).  Later, Eugene’s mother assumed the duties as his guardian.</p>
<p style="text-align: justify;">In 1989, Eugene moved to Tennessee and resided at a nursing facility near Memphis.  David Wayne Parish (“David Wayne”), Eugene’s brother, lived with his wife, Diane, near Eugene’s nursing facility.  Since Eugene’s mother remained in Florida, she agreed to transfer the conservatorship to David Wayne and Diane in Tennessee.</p>
<p style="text-align: justify;">In 2000, David Wayne and Diane petitioned to be appointed as Eugene’s co-conservators in Tennessee.  In order to be appointed, Tennessee law required that David Wayne and Diane show that Eugene was a “[d]isabled person,” which “means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection and assistance by reason of mental illness, physical illness or injury, developmental disability or other mental or physical incapacity.”  Tenn.Code Ann. § 34-1-101(7).  The Tennessee court granted the petition, and David Wayne and Diane became Eugene’s conservators.</p>
<p style="text-align: justify;">In the fall of 2002, David Wayne assisted Eugene in preparing a Last Will and Testament (the “will”).  David Wayne testified at trial that Eugene had informed him “out of the blue” that he wanted a will.  During Eugene’s meeting with the paralegal who drafted the will, David Wayne acted as a translator because Eugene, who spoke through a voice box due to a tracheotomy, was difficult to understand.  David Wayne was present in the room with the witnesses and the notary when the will was executed and witnessed on October 2, 2002.</p>
<p style="text-align: justify;">In the will, Eugene bequeathed 25% of his estate to David Wayne, 25% to Diane, 25% to David, and 25% to other family members.  Eugene’s will appointed David Wayne as executor and Diane as substitute executor.</p>
<p style="text-align: justify;">In 2004, David Wayne and Diane requested that David and his wife Jessika Parish (“Jessika”) take over as conservators and guardians of Eugene.  David and Jessika, who lived in Virginia Beach, petitioned the local circuit court in Virginia to adjudicate Eugene incompetent and appoint them as guardians and conservators and the Virginia circuit court granted the petition.  The 2004 order appointing a temporary conservator found that Eugene “is incapacitated to such an extent that he is unable to care for himself, make medical decisions, manage his estate or understand his debts as they come due.”</p>
<p style="text-align: justify;">Eugene died in 2006.  David qualified as his administrator.  Diane then petitioned the circuit court to have David removed as administrator and herself appointed as executor pursuant to Eugene’s will.  David filed a counterclaim to impeach the will.  David claimed that Eugene lacked testamentary capacity to execute the will due to encephalopathy.  He further claimed that David Wayne and Diane subjected Eugene to undue influence.  At trial, the circuit court found that Diane had proved by clear and convincing evidence that Eugene had testamentary capacity, and that Eugene was not subjected to undue influence.</p>
<p style="text-align: justify;"><strong>Discussion.</strong>  One may be capable of making a will yet incapable of disposing of his property by contract or of managing his estate.  While the mental strength to compete with an antagonist and an understanding to protect one’s own interest are essential in the transaction of ordinary business, the execution of a will only requires the testator to understand the business in which he is engaged, his property, the natural objects of his bounty, and the disposition he desires to make of his property.  Therefore, the condition of being unable, by reason of weakness of mind, to manage and care for one’s estate is not inconsistent with capacity to make a will.</p>
<p style="text-align: justify;">The proponent of a will is entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for the valid execution of the will.  Since David was able to prove compliance with the statutory requirements of Tennessee law (the jurisdiction where the will was executed), the burden shifted to Diane to prove Eugene lacked testamentary capacity.</p>
<p style="text-align: justify;">At trial, Leonard Kyles (the paralegal who assisted Eugene in drafting the will and was a witness to its execution), testified that he was satisfied that Eugene knew what he was doing when he signed the will.  Cheryl Campbell witnessed the execution of the will to notarize Eugene’s signature and testified that Eugene, when asked what the document was, replied it was his last will and testament.  Ms. Campbell also testified that Eugene did not do or say anything to cause her concern as to his understanding of what was happening.</p>
<p style="text-align: justify;">In addition, Dr. Elbert Hines, Eugene’s treating physician at the nursing facility in Tennessee, testified that he saw Eugene at least once every 60 days, beginning in the fall of 2000.  He assessed Eugene in September of 2002 and testified with a reasonable degree of medical probability that Eugene was not confused in any way, that he knew what it was he was doing and who his relatives were at that time.  Dr. Hines saw Eugene again in October and December of 2002, and testified that he was alert and oriented to self and place and that he had not deteriorated since the September visit.</p>
<p style="text-align: justify;"><strong>Ruling.</strong>  Although Diane presented contrary evidence at trial, the Court considered the testimony of Mr. Kyles, Ms. Campbell, and Dr. Hines to be sufficient to support David’s assertion that Eugene understood he was making a will and who the natural objects of his bounty were.  Accordingly, the Virginia Supreme Court held that Eugene’s adjudications of incompetence due to encephalopathy and the attendant appointments of conservators did not create a presumption of testamentary incapacity, and that his will was valid.</p>