Supreme Court of Virginia Holds Presumption of Testamentary Capacity Does Not Disappear Unless Rebutted as a Matter of Law
The Supreme Court of Virginia recently held it was proper for a trial court to instruct a jury that the proponent of a will enjoys the presumption of testamentary capacity, and this presumption does not disappear even when the opponent of a will produces evidence, that, if believed, could be sufficient to rebut the presumption (Kiddell v. Labowitz). In this case, Kiddell sought to impeach her cousin’s will and have the court admit an earlier will, which was more favorable to her, to probate, claiming that the testator lacked the testamentary capacity to execute the later will. After the trial court denied both parties’ motions to strike the evidence and instructed the jury on the presumption of testamentary capacity and the parties’ respective burdens of proof, the jury found the later will was valid.
On appeal, Kiddell argued that the trial court erred in granting two jury instructions regarding the presumption of testamentary capacity and in denying her motion to strike. In affirming the judgment upholding the later will, the Supreme Court of Virginia held that the presumption of testamentary capacity disappears only when the presumption is rebutted as a matter of law. The presumption does not disappear “even when the opponent of a will produces evidence that, if believed, could ascertain or establish facts sufficient to rebut the presumption of the testator’s capacity. Unless the opponent has rebutted the presumption as a matter of law, whether the presumption has been rebutted, is to be determined by the jury.
The Court held that Kiddell’s evidence was not sufficient to rebut the presumption of testamentary capacity as a matter of law in this case, and therefore, the jury had to be instructed as to the presumption. “Where the evidence is in equipoise, the presumption comes to the proponent’s rescue allowing him to prevail.” Thus, the trial court did not err in instructing the jury as to the existence of the presumption. The Court further held that given the conflicting evidence regarding the testator’s capacity to execute the later will, the trial court correctly denied Kiddell’s motion to strike and allowed the jury to decide the issue of testamentary capacity.
In light of this decision, practitioners with clients involved in will contests should ensure that the juries in their cases are instructed properly regarding the presumption of testamentary capacity in favor of a will proponent and the will opponent’s burden to introduce evidence sufficient to rebut the presumption.
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