Back in June of this year, the Virginia Supreme Court handed down a ruling in an estate dispute case that, while it didn’t particularly break new legal ground, provides a helpful overview of the current state of Virginia law regarding Virginia’s Slayer Statute as well as claims contesting a deed of gift on the basis of undue influence.
In Gelber v. Glock, 293 Va. 497 (2017), the Virginia Supreme Court reviewed rulings of the trial court in a case involving allegations by several of the decedent’s children that, among other things, their sister wrongfully induced their mother to execute a deed of gift and bill of sale through undue influence and fraud. At trial, the trial court had excluded certain statements by the decedent as hearsay, and further struck the plaintiffs’ evidence as to their claim of undue influence. On appeal, the Virginia Supreme Court reversed the trial court on both issues.
Hearsay / Dead Man’s Statute
At trial, the plaintiffs sought to introduce into evidence statements made by the decedent whereby she disavowed the deed of gift that she had previously executed. The trial court held that those statements were inadmissible, apparently reasoning that the Dead Man’s statute is not available as a hearsay exception for statements by the decedent that were not made contemporaneously with the execution of the deed of gift. In general, the Dead Man’s statute prohibits someone from receiving a judgment based solely on his own testimony that a deceased person said something. Instead, there must be corroborating evidence to support it. There is a lengthy series of cases about how strong the corroborating evidence must be, and from whom it may and may not come.
The Virginia Supreme Court reversed the trial court, holding that such statements are admissible under the Dead Man’s statute, as an exception to the hearsay rule. The Virginia Supreme Court examined the plain language of the Dead Man statute and held that it does not contain any limitations that would limit its applicability to declarations made “contemporaneously” with a writing at issue.
This is a very straight-forward ruling by the Virginia Supreme Court, and legally speaking it doesn’t particularly break any new ground. As a practical matter, I almost always file a bench brief with the court prior to a trial in an estate dispute, which discusses the various hearsay exceptions that form the basis for the admissibility of statements by a decedent. Those exceptions include the Dead Man’s statute, as well as Rule 2:803(3) (which wasn’t applicable in this case).
Undue Influence Claim
The trial court struck the plaintiffs’ evidence as to their claim of undue influence. For the non-lawyers reading this post: a motion to strike is made by a defendant after a plaintiff presents all of his evidence, and it argues that even if the court views the evidence in the light most favorable to the plaintiff, the plaintiff still failed to present sufficient evidence to support a claim. If a court grants a motion to strike, it enters summary judgment in favor of the defendant, and then dismisses that claim by the plaintiff (without the need to finish the trial). Given the high standard on a motion to strike, and because the granting of such a motion would short-circuit a full trial, courts do not commonly grant motions to strike. If they improperly strike a plaintiff’s evidence, the plaintiff can appeal, and if the trial court is reversed, the case will usually be remanded for an entirely new trial.
The Virginia Supreme Court devoted 12 pages to spelling out facts that, according to the Court, when viewed in the light most favorable to the plaintiffs, adequately supported a claim for undue influence in connection with the execution of the deed of gift by the decedent. The opinion provided a helpful summary of the law in Virginia relating to when a party may establish a prima facie case of undue influence: “upon proof of great weakness of mind and grossly inadequate consideration or suspicious circumstances . . . . or upon proof that a confidential relationship existed between the grantor and proponent of the instrument.” The Court held that the evidence supported a prima facie case that the decedent suffered from great weakness of mind; that the property was obtained under suspicious circumstances; and that a confidential relationship existed between the defendant and the decedent.
Like the ruling on the Dead Man’s statute, this ruling on the undue influence claim does not really break any new ground (legally speaking). While it does not establish new law, it is a helpful reminder to trial courts that they should be very hesitant to grant motions to strike at the close of the plaintiff’s case. I would imagine that most estate litigators in Virginia, when opposing a motion to strike in an estate dispute case, will want to cite Gelber in their arguments now, as a cautionary tale of the degree of scrutiny that the Virginia Supreme Court is willing to impose on rulings sustaining motions to strike.
