Varney v. Gibson
Varney v. Gibson
Opinion of the Court
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 ease 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. Var-ney contacted by telephone attorney Truman Chafin. Mr. Varney requested that Mr. Chafin prepare a new will for him.
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.
On September 3, 1994, Mr. Varney died.
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 VarneyBall allege that material issues of fact are in dispute regarding Mr. Varney’s competency at the time he executed his will.
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, 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 “Reeeee”, 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;
IV.
CONCLUSION
In view of the foregoing, we affirm the circuit court’s order granting summary judgment to the defendant.
Affirmed.
. 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).
. 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.
. The will left gifts to numerous persons. The will provided gifts for each of the parties in this case.
. A deposition was scheduled for Ms. Hatfield but she failed to appear.
. Mr. Varney was 78 years old at the time of death.
. 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”).
. The attending physician. Dr. J. Timothy Ko-hari, 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.
Reference
- Full Case Name
- Reece Kirk VARNEY and Martha Lukie Ball, Below/Appellants v. Judy GIBSON, Below/Appellee
- Status
- Published