Varney v. Gibson
Annotate this Case IN THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA
January 1998 Term
_____________
No. 24798
_____________
REECE KIRK VARNEY and
MARTHA LUKIE BALL
Plaintiffs Below/Appellants,
v.
JUDY GIBSON
Defendant Below/Appellee.
____________________________________________________________________
Appeal from the Circuit Court of Mingo
County
Honorable Elliott E. Maynard, Judge
Civil Action No. 94-C-262
AFFIRMED
____________________________________________________________________
Submitted: May 13, 1998
Filed: May 21, 1998
Peggy L.
Collins Lera
K. VanMeter
Collins &
Courtright Hunt
& Lees
Charleston, West
Virginia Charleston,
West Virginia
Attorney for
Appellant W.
Thomas Ward
Williamson,
West Virginia
Attorneys
for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD, deeming himself disqualified, did not
participate in the decision of this case.
JUDGE FRYE, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Summary
judgment is appropriate if, from the totality of the evidence
presented, the record 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." Syl. pt. 2, Williams
v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
2. "The
time to be considered in determining the capacity of the testator
to make a will is the time at which the will was executed."
Syl. pt. 3, Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603
(1964).
3. "'Evidence
of witnesses present at the execution of a will is entitled to
peculiar weight, and especially is this the case with the
attesting witnesses.' Point 2, Syllabus, Stewart v. Lyons,
54 W.Va. 665, 47 S.E. 442 [1903]." Syl. pt. 4, Frye v.
Norton, 148 W.Va. 500, 135 S.E.2d 603 (1964).
4. "Merely because a testator may be incompetent to safely transact the general business affairs of life does not render him incompetent to make a will." Syl. pt. 8, Stewart v. Lyons, 54 W.Va. 665, 47 S.E. 442 (1903).
5. "It
is not necessary that a testator possess high quality or strength
of mind, to make a valid will, not that he then have as strong
mind as he formerly had. The mind may be debilitated, the memory
enfeebled, the understanding weak, the character may be peculiar
and eccentric, and he may even want capacity to transact many of
the business affairs of life; still it is sufficient if he
understands the nature of the business in which he is engaged
when making a will, has a recollection of the property he means
to dispose of, the object or objects of his bounty, and how he
wishes to dispose of his property." Syl. pt. 3, Stewart
v. Lyons, 54 W.Va. 665, 47 S.E. 442 (1903).
Per Curiam:See footnote 1
1
This appeal
was brought by Reece Kirk Varney and Martha Lukie Ball,
appellants/plaintiffs below, (hereinafter
"Varney-Ball") from an order of the Circuit Court of
Mingo County granting summary judgment to Judy Gibson,
appellee/defendant below, (hereinafter "Gibson"). The
summary judgment order found that the decedent, Reece Varney,
Sr., was competent and was under no undue influence at the time
of execution of his last will and testament. In this appeal
Varney-Ball contend that material issues of fact were in dispute
which precluded summary judgment. We disagree and affirm the
circuit court.
I.
FACTUAL BACKGROUND
The parties in
this matter are siblings. The contested will in this case is that
of their father, Reece Varney, Sr (Mr. Varney). On August 21,
1994, Mr. Varney was admitted to Williamson Memorial Hospital as
a result of lung cancer. While in the hospital Mr. Varney
contacted by telephone attorney Truman Chafin. Mr. Varney
requested that Mr. Chafin prepare a new will for him.See footnote 2 2 Mr.
Chafin testified in a deposition that he had known Mr. Varney all
of his life. Further, Mr. Chafin testified that Mr. Varney
sounded competent during their initial conversation about the
will. Mr. Chafin instructed Mr. Varney to write down all matters
he wanted included in the will. Mr. Chafin instructed Mr. Varney
to have the information sent to his office. Mr. Varney followed
Mr. Chafin's instructions and prepared a draft of the contents of
his will. The draft was dropped off at Mr. Chafin's office by
Ms.Gibson. Mr. Chafin testified that once he received the draft,
he confirmed each matter requested to be placed in the will with
Mr. Varney by telephone. Mr. Chafin indicated that during the
conversation Mr. Varney sounded normal and competent. After the
will was prepared, Mr. Chafin had it taken to Mr. Varney for
execution.See footnote 3 3
The will was
executed by Mr. Varney on August 30, 1994 while he was at the
hospital. Present during the execution of the will were nurses
Lisa Ball and Deloris King. Also present was hospital notary,
Sandra Hatfield. During the deposition testimony of Ms. Ball and
Ms. King, each testified that they saw Mr. Varney execute his
will. Both women testified that Mr. Varney was competent at the
time of execution.See
footnote 4 4 Both nurses testified that they
attended Mr. Varney while he was in the hospital and were aware
of when he was and was not oriented and alert.
On September
3, 1994, Mr. Varney died.See
footnote 5 5 Mr. Varney's will named Ms. Gibson as
executrix of his estate. On September 21, 1994, Varney-Ball filed
a complaint seeking to set aside Mr. Varney's will on the grounds
of duress or incompetency. After a period of discovery the
circuit court, by order filed October 4, 1996, granted summary
judgment to the defendant. This appeal followed.
II.
STANDARD OF REVIEW
The standard of
review of a circuit court's entry of summary judgment is de novo.
Syl. pt 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994). In syllabus point 2 of Williams v. Precision Coil, Inc.,
194 W.Va. 52, 459 S.E.2d 329 (1995), we explained as follows:
Summary
judgment is appropriate if, from the totality of the evidence
presented, the record 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.
III.
DISCUSSION
In the instant
proceeding Varney-Ball allege that material issues of fact are in
dispute regarding Mr. Varney's competency at the time he executed
his will.See footnote 6 6
This Court held in syllabus point 3 of Frye v. Norton,
148 W.Va. 500, 135 S.E.2d 603 (1964) that "[t]he time to be
considered in determining the capacity of the testator to make a
will is the time at which the will was executed." We have
also held that "'[e]vidence of witnesses present at the
execution of a will is entitled to peculiar weight, and
especially is this the case with the attesting witnesses.' Point
2, Syllabus, Stewart v. Lyons, 54 W.Va. 665, 47 S.E. 442
[1903]." Syl. pt. 4, Frye. This Court noted in
syllabus point 8 of Stewart, that "[m]erely because a
testator may be incompetent to safely transact the general
business affairs of life does not render him incompetent to make
a will." The decision in Stewart elaborated as
follows:
It
is not necessary that a testator possess high quality or strength
of mind, to make a valid will, not that he then have as strong
mind as he formerly had. The mind may be debilitated, the memory
enfeebled, the understanding weak, the character may be peculiar
and eccentric, and he may even want capacity to transact many of
the business affairs of life; still it is sufficient if he
understands the nature of the business in which he is engaged
when making a will, has a recollection of the property he means
to dispose of, the object or objects of his bounty, and how he
wishes to dispose of his property.
Syl. pt. 3, Stewart.
The circuit
court found that based upon the evidence in the record, Mr.
Varney was competent at the time he executed his will on August
30, 1994. The evidence consisted of the deposition testimony of
Mr. Chafin, indicating Mr. Varney was of clear mind and competent
when he communicated the matters to be included in the will. The
attesting witnesses, Ms. Ball and Ms. King, testified during
their depositions that Mr. Varney was competent when he signed
the will. Varney-Ball attempt to counter this evidence by showing
that Mr. Varney scribbled his name as "Reeece", instead
of "Reece"; that medical records indicated Mr. Varney
was at times disoriented; that Mr. Varney was on medication that
impaired his mind; that the attending physician testified that he
had his doubts about Mr. Varney's competency;See footnote 7 7 and that the will
did not have a residuary clause. This evidence does not rise to
the level of presenting a material dispute as to the competency
of Mr. Varney at the time of execution of the will. See Williams
v. Precision Coil, Inc., 194 W.Va. 52, 60 n.13, 459 S.E.2d 329, 337 n.13 (1995) ("In this context, the term 'material'
means a fact that has the capacity to sway the outcome of the
litigation under the applicable law. If the facts on which the
nonmoving party relies are not material or if the evidence 'is
not significantly probative,' [summary] disposition becomes
appropriate.") Citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212
(1986). Taken together, all of the facts upon which Ms. Gibson
relies are not significantly probative to sway the outcome of the
litigation based upon applicable law.
IV.
CONCLUSION
In view of the
foregoing, we affirm the circuit court's order granting summary
judgment to the defendant.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n 4. (1992).
Footnote: 2 2 Mr. Chafin had previously prepared a will for Mr. Varney, which was executed in 1973. In the first will Mr. Varney left all of his estate to his wife. The first will also provided that if Mr. Varney's wife preceded him in death, his estate was to go to his son, Reece Kirk Varney.
Footnote: 3 3 The will left gifts to numerous persons. The will provided gifts for each of the parties in this case.
Footnote: 4 4 A deposition was scheduled for Ms. Hatfield but she failed to appear.
Footnote: 5 5 Mr. Varney was 78 years old at the time of death.
Footnote: 6 6 Varney-Ball have offered no argument or law on the issue of duress in making and executing the will. See Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981) ("Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived").
Footnote: 7 7 The attending physician, Dr. J. Timothy Kohari, did not render an opinion regarding Mr. Varney's competency. Dr. Kohari testified that he would defer to the opinion of Ms. King and Ms. Ball, the individuals who were actually present at the time the will was executed.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.