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Kiddell v Labowitz

Case No. 111236 (VA S.Ct., Nov. 1, 2012)

In this will contest, we consider whether the circuit court erred in instructing the jury as to the existence of the presumption of testamentary capacity. Appellant contends that, under the facts of this case, the presumption disappeared, and it was error to instruct the jury regarding the presumption. We conclude that the presumption does not necessarily disappear in the face of evidence to the contrary. Moreover, the circuit court, in this case, did not rule, at the motion to strike, that the presumption had been rebutted. Therefore, the circuit court did not err in instructing the jury about the presumption, and we affirm the circuit court’s judgment.

I. FACTS AND PROCEEDINGS



Louise Bradford Judsen executed a will on April 19, 2010, (“the April will”), naming her beneficiaries: Judsen’s cousin, Laurie Kiddell (“Laurie”); Laurie’s husband, Lee Kiddell (“Lee”); their daughter, LeAnn Kiddell (“LeAnn”); two other first cousins; and the “American Cancer Association.” The April will was prepared by Laurie from an online template.

On June 15, 2010, Judsen executed another will (“the June will”), naming Kenneth E. Labowitz, an attorney, as the executor of her estate. In the June will, Judsen bequeathed her dog and a cash gift for the dog’s care to Laurie. Judsen bequeathed one-third of her residuary estate to the “Leukemia & Lymphoma Society Inc.,” one-third to the “American Cancer Society Inc.,” and one-third to a “Head Trauma Research Center” to be chosen in the sole discretion of her executor.

Judsen died on June 18, 2010, and the June will was admitted to probate. Laurie and LeAnn (hereinafter referred to collectively as “Kiddell”) filed a “Complaint to Impeach Will, Nullify Probate Order and Admit Earlier Will to Probate” against Labowitz, the Leukemia and Lymphoma Society, Inc., and the American Cancer Society, Inc. In this complaint, Kiddell alleged that Judsen lacked testamentary capacity when she executed the June will. Kiddell sought to have the order admitting the June will to probate nullified and the April will admitted to probate. Labowitz filed an answer denying Kiddell’s claims.
 

 

Judge(s): Cleo E. Powell
Jurisdiction: Virginia Supreme Court
Related Categories: Civil Procedure
 
Supreme Court Judge(s)
Bernard Goodwyn
Cynthia Kinser
Donald Lemons
Elizabeth McClanahan
LeRoy Millette, Jr.
William Mims
Cleo Powell

 
Trial Court Judge(s)
Alfred Swersky

 

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rowe v. rowe, 144 va. 816, 822, 130 s.e. 771, 772 (1925). “the 2 strike, the issue of whether kiddell presented sufficient testator’s sanity and capacity, which is to be testator’s sanity. indeed, of such force is that describe the degree of mental capacity required for the valid 235 va. 523, 526, 369 s.e.2d 397, 399 (1988) ("a presumption is according to labowitz, judsen also told him she wanted to the testimony of witnesses present at the time of execution is will. contacted judsen in the hospital because laurie wanted him to 726 (2002). the same standard applies to our review of the opinion by sufficient to rebut the presumption of testamentary capacity." proponent of the will at issue, our decisions in tate v. circuit court’s refusal to sustain her motion to strike trial court’s ultimate role in ruling on a motion to strike. denied."5 a. presumption of testamentary capacity are required to give rise to the presumption are proven, the continuing, the majority conclusions of fact to be drawn from the evidence, or if the 16 regard to lost wills, the virginia model jury instructions and 9, nor did it err in refusing to grant kiddell’s motion to presumption the burden is on [the proponent] to prove by clear the other who served as the notary public, agreed. both 37 presumption."). [the opponents] had [not], this case would have been over this for the next motion to strike, it could not have ruled that the presumption partial summary judgment. the trial court may only enter a judgment at trial. see code § 8.01-378 (circuit court may only 1 publ’g co., 219 f.2d 397, 399 (3d cir. 1955) (holding that a disappear.' ") (quoting lincoln, 105 u.s. at 617). the existence of testamentary capacity when the will was the circuit court did not err in granting instructions 8 of production and persuasion with regard to a particular factual further opined that judsen would have known that she was signing 523, 526, 369 s.e.2d 397, 399 (1988). to rebut the presumption kiddell does not challenge the sufficiency of the evidence the place of facts; they are never allowed against ascertained have the burden of proof by the greater weight of presumption that may be rebutted, with the burden of overcoming legal standard of "sufficient evidence."6 appropriate in this case. louise bradford judsen executed a will on april 19, 2010, of dr. salhan and dr. hyde. both opined that on june 15, 2010, by the trial court when it ruled on the motion to strike. the he did not question judsen concerning her property, finances, or issue"). louise bradford judsen. in deciding this 2010, for the purpose of evaluating her competency. in that such capacity exists, if at the time a will is executed, the 480, 500, 57 s.e.2d 151, 160 (1950); culpepper v. robie, 155 va. ordered that the june will is judsen’s “last will and whether the proponent has carried the ultimate burden of proving hundred years, the court addressed and approved the exact same thus, recognizing that this court has a long history of dr. abdulkadir salhan, one of judsen’s attending the evidence. court stated it had not ruled that the opponents rebutted the conclude that the presumption does not necessarily disappear in stated: standard to employ in deciding if the opponent of a will has weight of the evidence. a paper but would not have known what was on it. is a matter of law, but whether the presumption has been while the burden of proof is upon those offering presumption and prove the contrary shall have trice, 152 va. 411, 440, 147 s.e. 251, 260 (1929); rust v. reid, judsen was not capable of making decisions about her property. rebutted as a matter of law. as the majority states, however, rebutted where the evidence of equally credible responded “no.” she did, however, leave a cash gift and her dog dunston, an attorney practicing primarily in the area of wills, will have introduced evidence sufficient to rebut execution of the june 15, 2010, writing. 15 determination of whether the presumption has been rebutted is to required to give rise to the presumption are to strike, “the trial continues as if the motion had not been was executed to the satisfaction of the jury, yet that kiddell's evidence could potentially rebut the presumption" in this will contest, we consider whether the circuit court 190 va. 480, 500-01, 57 s.e.2d 151, 160-61 (1950); jenkins v. hospital on june 14, she did not maintain eye contact with him executing a will. he described judsen as knowing her property, the fact finder to draw a certain conclusion or a certain june 15 stated that judsen understood “her disease, her james v. city of falls church, 280 va. 31, 38, 694 s.e.2d 568, judsen’s family members because he was not aware of the april place of facts; they are never allowed against ascertained and 4 40 tate. in rust, one of the issues on appeal involved the simpson v. simpson, 162 va. 621, 642, 175 s.e. 320, 329 (1934) 29 ("[w]hen some substantial evidence is produced by the party disappears when rebutted by sufficient evidence of incapacity. 706-08, 62 s.e. 926, 927-28 (1908); see also tate v. chumbley, and 9 did not instruct the jury accordingly. the majority, 155. on november 23, 1915, she was “adjudged to be insane.” 5 12 to include or exclude a particular item of property from the jury that if the evidence is in equipoise, the presumption tips daughter. nevertheless, laurie admitted that judsen became testamentary capacity to be decided by the jury. if the presumption thus created is rebutted or instructions on the presumption of testamentary capacity." 143 s.e. at 887 (" 'presumptions are indulged in to supply the by giving instructions 8 and 9. instructions 5 and 6 correctly testator. yet, upon the trial of that issue, of testamentary capacity, the opponent of the will must go incapacity sufficient to rebut the presumption.3 from evidence, bearing upon the issue of a testator’s intention trial court’s denial of labowitz’ motion to strike amounted only paper writings, both being testamentary in character, dated 31 161, 169 (1998) (discussing "three . . . presumptions in city of hopewell v. tirpak, 28 va. app. 100, 117, 502 s.e.2d rebutted by evidence that judsen was not competent at that time. or establish judsen’s incapacity as a true fact. thus, it was synonymous. state v. narron, 666 s.e.2d 860, 865 (n.c. ct. app. kiddell’s argument not only ignores the fact that the trial laurie also testified that at some point, she talked with judsen evidence sufficient to overcome the presumption and prove the indicates that the trial court did not decide that kiddell had, collectively as “kiddell”) filed a “complaint to impeach will, admitted to probate. labowitz filed an answer denying kiddell’s following jury instruction: the face of evidence to the contrary. moreover, the circuit undertake to determine the truth or falsity of testimony or to b. motion to strike the evidence execute a new will. consequently, labowitz contacted sean testified that they would not have witnessed or notarized the had rebutted the presumption of testamentary capacity. however, even when the opponent of a will produces evidence the jury . . . and once rebutted in either of these fashions, word. see wells v. commonwealth, 60 va. app. 111, 123-24, 724 the circuit court erred by giving instructions 8 and 9. but, 1 capacity of a testator, great weight is to be attached to the that in denying labowitz's motion to strike, the circuit court v. davies, 226 va. 310, 319, 310 s.e.2d 167, 171 (1983) when reviewing whether proper jury instructions were given dr. thomas hyde, who testified at trial as an expert in the (holding that a presumption "disappears when contrary evidence 124 va. at 26, 97 s.e. at 331 (internal quotation marks be found after his death was destroyed and “[t]o overcome this instruction similar to one challenged on appeal was given in together with instructions 5 and 6, clearly stated which party summary judgment on the issue of whether she rebutted the on the part of the testator at the time the will hertz v. record publ'g co., 219 f.2d 397, 399 (3d cir. 1955) in ruling on labowitz’ motion to strike kiddell’s evidence, determining the question of competency. will was executed in compliance with statutory requirements, will.” 2 virginia model jury instructions – civil, no. 48.055, had the burden to prove testamentary capacity by the greater proven, the presumption must be applied (the necessary for a given purpose swisher v. swisher, 223 va. 499, 503, 290 s.e.2d 856, 858 the sole discretion of her executor. 23 evidence to rebut the presumption of testamentary capacity. in court for a new trial. one-third of her residuary estate to the “leukemia & lymphoma presumption of sanity is rebuttable, but it is not necessarily proved testamentary capacity by a preponderance of the evidence. rebut the presumption of testamentary capacity" and if labowitz business about which she was engaged and how she wished to being “spiteful” when she executed the june will with terms that treats “sufficient evidence” and “satisfactory evidence” as o’brien v. everfast, inc., 254 va. 326, 330, 491 s.e.2d 712, 714 any reasonable inferences that may be drawn from such evidence.” testator is “ ‘capable of recollecting her property, the natural majority, however, gives no guidance as to the definition of the sane and capable of making a will until the § 64.1-49. according to dunston, there was no question in his however, because kiddell did not move for partial (internal quotation marks omitted); accord cohn v. knowledge the other named defendants did not respond to the app. div. 1963) (a "presumption is not evidence but serves in to have been proven) until evidence sufficient to overcome the trusts, and estates, to assist judsen with her new will. the april will, testified that when he visited judsen at the dunston, during a meeting with judsen on june 3, she explained kiddell, in fact, rebutted the presumption as a matter of law. denial of labowitz's motion to strike "amounted only to a ruling discussing the presumption that "proof that [an] automobile was the presumption is not evidence for a jury to consider. thus, i wanted labowitz to be authorized to act under judsen’s power of diagnosis, stage, and prognosis.” dr. salhan also admitted that that the testator had testamentary capacity when she executed the proponent's rescue, allowing him to prevail." meeting his burden of persuasion by a presumption of there was a presumption that judsen had testamentary capacity at assist judsen with her financial matters. specifically, laurie 35 this prima facie presumption, like other – also termed sufficient evidence; satisfactory proof.” black’s making the 1915 will but that during the six months thereafter, the proponent is deprived of this benefit and, in the face of at issue in accordance with the requirements of code § 64.1-49. we concluded that the trial court erred by failing to 9; and (2) whether the circuit court erred by denying kiddell’s today, a jury will determine whether the opponent of a will has 201, 211, 257 s.e.2d 784, 790 (1979)). black’s law dictionary bank v. march, 650 s.w.2d 678, 680-81 (mo. ct. app. 1983) was executed to the satisfaction of the jury, yet fact that the trial court proceeded to instruct the jury that established facts. when these appear, presumptions above. 26 sustain a motion to strike at the close of the evidence. 190 va. at 485-86, 57 s.e.2d at 153. a jury returned a verdict presumption disappeared and the only issue for the jury to contest using instructions like those in our prior cases or circuit court’s judgment. hospital on june 15 with two paralegals from his office. after the presumption was to be considered in determining competency. denied the motion to strike labowitz’ evidence because he failed a will for probate, to show testamentary capacity we affirm the circuit court’s judgment. him, under circumstances making him liable" for injuries testamentary capacity, the circuit court stated that "the only other appropriate legal rule applied to the facts as a matter of law, no rational finder of fact could find that property and the natural objects of her bounty. she understood 32 it resting upon the defendant." id. at 112-13, 7 s.e.2d at 128. that the opponent of a will has proven testamentary incapacity and responded “yes” to every question he asked her. carlton did 9 in laurie’s business, they spoke several times each week. in deciding this question, you will have to opponent. furthermore, assuming the majority is correct in its his burden of proving testamentary capacity by a preponderance 124 va. 1, 26, 97 s.e. 324, 331 (1918); huff v. welch, 115 va. labowitz, the leukemia and lymphoma society, inc., and the s.e.2d at 726. presumption but had ruled that there "was . . . sufficient 670 s.e.2d 720, 722 (2009). “whether the content of [an] your verdict must be based on the facts as jury to take the presumption into consideration is the testamentary capacity. thus, using the majority's rationale, 2 contrary.” id. at 25, 97 s.e. at 331. 1 as a matter of law, rebutted the presumption. under the majority's construct, the presumption remains in and hopkins v. wampler, 108 va. 705, 62 s.e. 926 (1908), did not the question whether the employee was acting within the scope of testimony,” a jury issue exists. state farm mut. auto. ins. co. 884, 887 (1928) (quoting lincoln v. french, 105 u.s. 614, 617 bounty. see costner v. lackey, 223 va. 377, 382, 290 s.e.2d ken labowitz, executor of the to include or exclude a particular item of property from the would have been precluded from fully understanding the nature i. facts and proceedings defendants was negligently operated by their employee. id. at testimony of the draftsman of the will, of the attesting court immediately responded, “i haven’t ruled [that] you 19 (“the april will”), naming her beneficiaries: judsen’s cousin, within the scope of his employment but rather was using it for determining the question of competency. the instruction that followed, jury instruction 6, stated: justice mcclanahan, concurring. ii. analysis testamentary capacity, the jury must be instructed as to this the case to go to the jury. been rebutted or in sending the evidence to the jury. the court tells the jury that all persons who be determined by the jury, unless the opponent has rebutted the consider this issue: 22 his own "mission." id. the plaintiff argued that certain the presumption has not been rebutted.1 presented sufficient evidence to permit the jury to determine disappears."); dromgoole v. white, 239 n.y.s.2d 747, 748 (n.y. s.e.2d 225, 231 (2012) (citing clark v. commonwealth, 220 va. claims.2 if kiddell allowing them to consider it. hopkins v. wampler, 108 va. 705, that the presumption had not been rebutted. in this case, the he also stated that judsen had a tendency to “get mad at anybody manner as to make it manifest that the name is at 48-27 (repl. ed. 2011). his employment at the time of the accident. id. at 111-12, 7 3 kiddell also argues that the circuit court erroneously nullify probate order and admit earlier will to probate” against s.e.2d at 399; see also rule 2:301. law because kiddell did not move the circuit court for such a gibbs v. gibbs, 239 va. 197, 200, 387 s.e.2d 499, 501 (1990). salhan, however, conceded that medical record notations dated a rule of law . . . ."). presumption and prove the contrary shall have been introduced." testamentary capacity at the time of the the instruction conflicted with the first part. id. rejecting labowitz contends he was entitled to instructions 8 and 9 even though the law is otherwise. for this reason, we hold that 124 va. at 26, 97 s.e.2d at 331. the opponent has established testamentary incapacity as a matter moreover, under our prior decisions, a finding of sufficient s.e.2d 515, 517-18 (1973). “the credibility of witnesses and and established facts. when these appear, presumptions 175 s.e. at 329 (holding that "the presumption must be applied prevail. indeed, if the jury is not advised of the presumption, did not err in instructing the jury about the presumption, and the presumption of testamentary capacity or yet, this is one of the reasons offered by the majority to to overcome the presumption and prove the contrary [was] sustaining the 1916 will. id. at 486, 57 s.e.2d at 154. first cousins; and the “american cancer association.” the april it was error to instruct the jury regarding the presumption. we and convincing evidence that [decedent] did not revoke the presumption. i ruled there was . . . sufficient evidence on the ruled that the presumption of testamentary capacity had been disappear.' " schmitt v. redd, 151 va. 333, 344, 143 s.e.2d thus, as explained by this court in both kavanaugh and evidence at trial showed that tate was “mentally capable” of 41 witnesses, and of attending physicians.” hall v. hall, 181 va. grant kiddell's motion to strike labowitz's evidence. i write 15, 2010 was not the last will [of] louise judsen jury. kiddell objected to these instructions, arguing that because the that only instructions 5 and 6 were necessary to instruct the 2008). it defines “satisfactory evidence” as “[e]vidence that va. at 113, 7 s.e.2d at 128 (holding that "if the presumption the writing of june 15, 2010, is the last will of equally balanced. the rebutter has not carried tending to rebut the presumption." martin v. phillips, 235 va. admitted to probate. laurie and leann (hereinafter referred to responded that “i haven’t ruled [that] you rebutted the re mid-south towing co., 418 f.3d 526, 531 (5th cir. 2005) but if a jury is instructed as to the meaning of the phrase mr. labowitz is entitled to a presumption that issue is introduced”); heffenger v. heffenger, 3 a.2d 95, 97 concerns about the testator’s ability to execute the will. one the jury returned a general verdict in favor of labowitz, any evidence presented to the contrary is incorrect. here, labowitz contends that instructions 8 and 9 were presumed fact must be assumed to have been they were growing up. since 2005, when judsen became involved weight of the evidence that ms. judsen had § 11.05[4] (4th ed. 2005). therefore, when the trial court resolve was whether labowitz proved judsen’s testamentary therefore, does not need to instruct a jury as to its meaning. (1) did louise judsen have testamentary s.e.2d 4, 8 (1988). 97 s.e. at 331; see e.g., tate, 190 va. at 500, 57 s.e.2d at to rebut the presumption, and that, if kiddell did so, labowitz execution of a will.” gibbs, 239 va. at 199, 387 s.e.2d at 500. of the accident, the employee was not operating the vehicle trial court answered this question by rejecting kiddell’s 28 establish a prima facie case of testamentary capacity because he states that "this court has a long history of approving jury because the parties have introduced evidence to dispel the i concur with part ii, section b. of the majority opinion failed to do so, then the presumption remained and labowitz was other relatives who were to receive nothing, kiddell contends law, but only opposed the motion to strike her evidence.1 always remains with the proponent of the will, but once the american cancer society, inc. in this complaint, kiddell hopkins, 108 va. at 707, 62 s.e. at 927. a few years later, execution of the will.” gibbs v. gibbs, 239 va. 197, 200, 387 to a presumption that testamentary capacity existed by proving "the primary significance of a presumption is that it operates capacity at the time of execution by the greater explain why a jury must be instructed about the presumption of the majority does not so hold. consequently, trial courts in (the presumed fact must be assumed to have been proven) until presumption of testamentary capacity disappears is inconsistent the absence in our jurisprudence of a definable evidentiary document she was executing. instructions similar to instructions 8 and 9. has a commonly accepted definition and that a trial court, court, in this case, did not rule, at the motion to strike, that made.” william h. bryson, bryson on virginia civil procedure the only question in this case is whether at the request of laurie, who lived in illinois, labowitz this writing is the last will of louise judsen. (n.h. 1938) (“when there is either evidence, or an inference as executor of judsen’s estate. in a final order, the circuit this court again approved instructing a jury as to the confirmed that the will expressed her wishes, that she was of presumption disappears only if rebutted by ascertained or 200, 704 s.e.2d at 105. evidence to rebut the presumption of testamentary capacity would your decision on this issue must be governed determination. fact finder but was ruling on a matter of law to determine sustained by the negligent operation of the vehicle, we the presumption had been rebutted. therefore, the circuit court 904, 908 (1989) (holding the trial court failed to adhere to the because of its later decision to give instructions 8 and 9. evidence" and is also told that the opponent of a will must from the circuit court of the city of alexandria presumption of testamentary capacity. disappears. presumptions give way to ascertained equal the presumption will prevail. strike labowitz’ evidence. therefore, we will affirm the dispel the mysteries that gave rise to the presumptions."); 1 in tate, the issue at trial was “which, if either, of two equal evidence, would be found to have not carried his burden 2 presumption of law as he would be to have any contestant, the onus probandi lies upon the be on trial for a felony, involving life or for these reasons, i conclude that the circuit court erred instructions 5 and 6 are set forth in 2 virginia model presumption comes to the proponent’s rescue, allowing him to by a trial court, this court’s “sole responsibility . . . is to constitute[d the] last will and testament” of margaret s. tate. s.e.2d 720, 722 (2009). see, e.g., tate v. chumbley, 190 va. however, in all those cases, this court discussed jury approving jury instructions on the presumption of testamentary “no.” however, she told dunston that she wanted laurie to take as a rule of law, has been rebutted. see martin v. phillips, witnesses for and against the presumption is presumption that the automobile was being operated in the proponent to satisfy the court or jury that the you find them and on the law contained in all of trial court need not instruct the jury as to the meaning of the and one of the paralegals from his office witnessed the of her property. the two paralegals also confirmed that as a matter of law means that no rational fact finder could find comes into the case, the presumption ceases to operate, as a matter of law when it denied labowitz's motion to strike, i have dealt specifically with rebuttable presumptions and explained that the prima facie case was "merely an inference or evidence. the circuit court denied labowitz’ motion. unlike in some other jurisdictions, in virginia a defendant, mr. labowitz, if the complainants have 97 (n.h. 1938) ("when there is either evidence, or an inference labowitz’ evidence, arguing that the evidence was insufficient of the evidence. instead, instruction 8 informed the jury that presumed against, 'however slight' the presumption disappears s.e. 556, 564 (1931)). the time of a will’s execution “is the who served as a witness to the execution of the june will and present: all the justices 8 and 9 was consistent with instructions on the presumption of appeal. jury instruction 5 stated: the existence of the presumption of testamentary capacity court did not actually rule that the presumption was rebutted, before this court. since the circuit court did not rule, and according to dunston, who drafted the june will and vacuum. once evidence is presented . . . presumptions become been introduced. court entered judgment in accordance with the jury verdict and presumption, not that it did, as a matter of law, rebut the equally balanced." rowe v. rowe, 144 va. 816, 822, 130 s.e. jury properly. labowitz responds that instructions 8 and 9, instructions 8 or 9 was the "functional equivalent" of the v. carlton, 221 va. 845, 853, 276 s.e.2d 171, 175 (1981); accord (“lee”); their daughter, leann kiddell (“leann”); two other rebutted the presumption of testamentary capacity. perhaps the that, if believed, could ascertain or establish facts sufficient practice is not without precedent in will contest cases. with 21 laurie testified that she and judsen were “very close” when kiddell did not move for partial summary judgment on the witnesses, present at the same time; and such as we explained in kavanaugh, a presumption disappears when and, thus, was an "accurate statement of the relevant legal the circuit court in ruling on labowitz's motion to strike noted was executed to the satisfaction of the jury, yet were dramatically different than the terms of the april will. 67, 76, 23 s.e.2d 810, 814 (1943); accord parish, 281 va. at in favor of kiddell, if they "introduced evidence sufficient to favor of labowitz if kiddell failed to rebut the presumption of review the evidence in the light most favorable to the non- the presumption, the burden rests upon the presumptions . . . are designed to fill a factual vacuum. once to shift to the opposing party the burden of producing evidence and the trier of facts receives the issue free of the for personal injuries sustained when an automobile owned by when labowitz moved to strike kiddell's evidence, arguing as the notary public in accordance with the provisions of code as kiddell correctly argues, in most contexts in virginia, in that case, the jury was instructed, inter alia, that you shall find your verdict in favor of the majority states that it is unclear whether the circuit s.e.2d at 722. va. at 202, 387 s.e.2d at 501 (stating that the fact an iii. conclusion attorney instead of laurie. according to labowitz, judsen issue of whether kiddell rebutted the presumption of attestation shall be necessary.” dunston read all the provisions of the will aloud to judsen, she 7 testator’s mental capacity. id. “[i]n determining the mental by the instructions that follow. not believe that he told dunston about this will. lymphoma society inc.” be made in the name of her mother. entitled to judgment in his favor at that point in the trial.4 3 . . . , the presumption disappears"); simpson, 162 va. at 642, s.e. 573, 757, 578 (1913) (holding that the trial court did not arises when the proponent of a will proves compliance with all morning." the court's last statement is unquestionably correct. forward with evidence to rebut the presumption of testamentary therefore, the issue of whether kiddell rebutted the presumption simpson v. simpson, 162 va. 621, 642, 175 s.e. 320, 329 (1934). presumption as a matter of law, i would not address whether extinguished by conflicting evidence.” nelms v. nelms, 236 va. forward with evidence sufficient to rebut the presumption. the jury in the instant case was specifically told to address, much less answer, the question whether the presumption taken into consideration by the jury in the presumption remained in the case "until evidence sufficient terms of his will the presumption against partial intestacy 27 the majority does not claim otherwise, nor can it. thus, the 818, 820 (1982) (“in considering the motion to strike the enter partial summary judgment when it has granted a motion to see that the law has been clearly stated and that the but also, in persisting in her argument, kiddell ignores the you shall find your verdict in favor of the 4 "greater weight of the evidence" or "preponderance of the her mental capacity became impaired. id. at 489, 57 s.e.2d at to be taken into consideration by the jury in necessary role of the presumption in the factual determinations, presumption in our jurisprudence, that though one principles." hancock-underwood v. knight, 277 va. 127, 131, 670 objects of her bounty and their claims upon her, knew the execution of the writing. taken into consideration by the jury in filed it with the fairfax county circuit court. labowitz did intended as a signature; and moreover, unless it physicians, testified that he completed a report on june 15, rebut the presumption of testamentary capacity as a matter of to strike will be denied.” standing alone, this statement no rational finder of fact could find that the presumption had failed to present evidence sufficient to overcome the presumption plays, instructions 8 and 9 did not tell the presumption of testamentary capacity does not disappear unless, determining whether labowitz, as the proponent of the will, met failed to prove that judsen knew the natural objects of her whom she was giving property and in what manner.” dr. hyde labowitz’ motion to strike, it implicitly found that the 18 parish v. parish, 281 va. 191, 200, 704 s.e.2d 99, 104 (2011). "sufficient evidence." at 501. the majority's conclusion that the circuit court's stated the applicable law.7 approval is not dispositive in the instant case. see gibbs, 239 that it was incumbent upon labowitz to prove that judsen was instruction or a close variant. see tate, 190 va. at 500-01, 57 corp. v. tidewater constr. corp., 170 f.2d 392, 394 (4th cir. dunston met with judsen at the hospital on multiple you shall find the writing dated june 15, will if they had doubted that judsen understood what she was the evidence, arguing that kiddell failed to overcome the inform the jury that there is a presumption that a will that was testamentary capacity or if labowitz proved testamentary 128. the majority does not disagree with this principle. the case as positive evidence to be weighed in determining whether the evidence was sufficiently rebutted. indeed, this care of her dog and leaving the residue of her estate to three family, and that he did not specifically assess her capacity to co., 418 f.3d 526, 531 (5th cir. 2005) (“evidentiary mere fact that the instructions were given and quoted with and is never to be considered in weighing evidence."); but cf. labowitz’ evidence, kiddell contends that labowitz failed to instructions did not inform the jury that the opponent had to go the natural objects of her bounty, and her wishes for the (1997). thus, the circuit court did not err by refusing to conclusion that, unless the opponent establishes testamentary 8 presumption of testamentary capacity. appellant contends that, had been rebutted as a matter of law since such a ruling would the trial court was required to accept as true all evidence v. record no. 111236 justice cleo e. powell unless the circuit court rules that the presumption was rebutted reversible error for the court to give instructions 8 and 9 and mind that when judsen executed the june will, she knew her [a] party is as much entitled to a benefit of a instructions 8 and 9. see diederich v. walters, 357 n.e.2d presumption of testamentary capacity had been rebutted, the on the part of the testator at the time the will of testamentary capacity disappears when rebutted by sufficient aware of all these individuals when she executed the june will. a will for probate, to show testamentary capacity specific assertion during discussions regarding the jury 2011). 11 there is an existing presumption in favor of testator’s sanity indeed could not have ruled, that the presumption was rebutted matter of law. kavanaugh v. wheeling, 175 va. 105, 113, 7 contrary, the presumption disappears." id. at 113, 7 s.e.2d at concerned about her dog, and aware that she had only a small to rebut the presumption of the testator’s capacity, the 452, 462, 143 s.e. 683, 686 (1928); rust v. reid, 124 va. 1, 26, furthermore, contrary to the majority's construct of the role executed and judgment must therefore be entered in favor of the who didn’t do what she wanted when she wanted.” substitute him for her as judsen’s attorney in fact. instructions to address issues different than the one now before that she wanted to dispose of her estate by providing for the join, dissenting. alfred d. swersky, judge designate weight of the evidence. instruction 9 told the jury to decide defendant, mr. labowitz, has proved testamentary 572 (2010). facts to be to the contrary.” kavanaugh, 175 va. at 113, 7 of the will did not establish the testator's incapacity as a in my view, the presumption of testamentary capacity arose 152 va. 411, 147 s.e. 251 (1929); rust v. reid, 124 va. 1, 97 law dictionary 639 (9th ed. 2009). “sufficient” means absence of such guidance is indicative of the fact that a jury society inc.,” one-third to the “american cancer society inc.,” strike or evidence sufficient to rebut the presumption. the (1) the proponent of the will, the defendant 7 s.e.2d at 128. there, a plaintiff sought to recover damages will contest will have to decide what is meant by "evidence circuit court did not err in instructing the jury as to the proponent of a will shows compliance with all the statutory must “accept as true all evidence favorable to a plaintiff and recognize that they disappear when rebutted. see kavanaugh, 175 it did, with the presumption in favor of testamentary capacity the majority states that the phrase "sufficient evidence" "therefore eliminat[ing] the need for any instruction to the 10 in a will contest, a presumption of testamentary capacity on this issue, the proponents of the will at a jury trial, the evidence showed that judsen was lee was not a party to the complaint and is not a party to see code § 8.01-378. when the trial court has denied a motion there was a presumption that they should consider, clearly testator’s execution of her will, and the other paralegal served 24 that she wished to leave her estate to laurie, her husband and hospital. (emphasis added). judsen died on june 18, 2010, and the june will was have amounted to the granting of a motion for partial summary of his case; and, where the facts which are present "sufficient evidence" to rebut the presumption of rebutted. rather, the circuit court ruled that kiddell had although the testator seemed tired, she was coherent and able to statutory requirements for the valid execution of the will. presumption as a matter of law. the evidence presented by prior cases, the jury was told that they were to take “into leaves one to wonder whether the “burden” that had been “met” compliance with all statutory requirements for the valid witnessed its execution, judsen fully understood that she was favorable to kiddell and any reasonable inferences therefrom. 344, 143 s.e. 884, 887 (1928); but cf., in re mid-south towing 1948) ("the presumption is not evidence for the consideration of not inform the jury that it should consider the presumption in “was aided by a presumption and the obligations of each party to doing or if she had seemed confused. existence of the presumption of testamentary capacity and this court held that if a presumption "is rebutted or overcome in submitting the case to the jury, the parties agreed on the proponent of the validly executed june will, he was aided in in the possession of the decedent prior to his death but cannot matter of law, it was not sufficient to rebut the presumption. and given sufficient weight, could rebut the presumption of these instructions. executed the june will.1 281, 287, 374 s.e.2d 4, 8 (1988). specific charities. on june 14, dunston reviewed a draft will 440, 147 s.e. 251, 260 (1929); green v. green's ex'rs, 150 va. 34 automobile was being operated by the defendant or someone for evidence sufficient to rebut the presumption of kiddell and leann m. kiddell, must introduce instructions at issue, when counsel asserted that “your honor of the terms of judsen’s april will leaving her estate primarily liberty, when the defense of insanity is relied clause that bequeathed her residuary estate to three charities. motion to strike the evidence. that argument, this court first explained that when the while the burden of proof is upon those offering id. “go forward with evidence sufficient to rebut the presumption.” incapacity as a matter of law, the presumption of testamentary evidence adduced at trial, along with "the prima facie a valid will, the burden of production shifts to the opponent to (2) the opponents of the will, laurie a. opponents' motion to strike the evidence. with the principle stated in kavanaugh. moreover, a finding the presumption of testamentary capacity does not disappear, contrary is proved, and that this presumption is id. at 113, 7 s.e.2d at 128. capacity, we must determine whether such instructions were the will. the instructions further told the jury to find in gibbs, 239 va. at 201, 387 s.e.2d at 501. when "the facts which referred to as "kiddell"), must introduce evidence "sufficient" with judsen. judsen indicated that there was an error in the contrary to the majority and kenneth e. labowitz, the plaintiffs’ evidence, the trial court was not sitting as the concludes that because the evidence presented by the opponents within the province of the jury.” id. at 310, 199 s.e.2d at when kiddell objected to instructions 8 and 9, she argued evidence presented by kiddell, if accepted by the jury as true inference from a given set of facts.” martin v. phillips, 235 still in place and for consideration by the jury. capacity "by the greater weight of the evidence." 30 angry with laurie when she asked labowitz to have judsen the circuit court did not rule that the presumption had been testamentary capacity. however, the determination of whether paragraph stating that she was “not unmarried.” she advised generally, “[a] presumption is a rule of law that compels capacity remains as evidence in the case and aids the proponent laurie a. kiddell, et al. the scales in favor of labowitz and permits a finding that he (1) louise judsen was capable of making a will of equally credible witnesses for and against the presumption is evidence to submit this issue to the jury. evidence of incapacity or as the majority concludes, when the instruct the jury regarding the presumption of testamentary james carlton, a tenant in judsen’s home and a witness to kiddell’s objection that allowed the jury to consider the 13 have not been adjudged insane are presumed to be you find them and on the law contained in all of as a matter of law because no rational fact finder could find judsen’s financial matters. laurie believed that judsen was dunston finalized judsen’s will and returned to the when ruling on labowitz’ motion to strike, the trial court issue, that laurie kiddell and leann kiddell (collectively whether the presumption had been rebutted. instruction 8 ms. judsen had testamentary capacity on june 15, the jury to consider the presumption when determining the and agree that the circuit court did not err by denying the 771, 772 (1925); see also nelms v. nelms, 236 va. 281, 287, 374 to sustain the jury verdict. instead, by challenging the 20 kiddell, while potentially sufficient to rebut the presumption to laurie, lee kiddell, and leeann kiddell and also naming 12 from evidence, bearing upon the issue of a testator's intention (2012) (quoting code § 64.1-49). the burden of persuasion testamentary capacity that this court has previously approved 160; huff, 115 va. at 76, 86, 78 s.e. at 575, 578. telling the another case was "not instructive in the instant case"). any begs the question whether a trial court or a jury decides if the tending to rebut the presumption.” martin, 235 va. at 526, 369 to prove judsen was aware of her family members and the natural stated that the “burden has been met,” and “therefore the motion (3) if you find that the opponents of the abilities were markedly impaired on june 15, 2010, such that she the decision in kavanaugh does not hold that a presumption 33 presumption must be applied (the presumed fact must be assumed to the jury. is sufficient to satisfy an unprejudiced mind seeking the truth. respond to dunston’s questions. neither paralegal had any .” id. at 1571. at 558 (2012) (quoting tabb v. willis, 155 va. 836, 859, 156 furthermore, dunston testified that he asked judsen if she in other words, " '[p]resumptions are indulged in to supply question is whether or not there is evidence presented by the when considering such a motion to strike, a trial court must instructions cover all issues which the evidence fairly raises.” simpson, the presumption of testamentary capacity disappeared at presumption “disappears when contrary evidence of the fact in question of competency. in contrast, instructions 8 and 9 did 39 the burden imposed upon him by law. where the 3 kiddell had to present "sufficient" evidence, not merely moreover, instructions 8 and 9 are different from those gibbs, 239 va. at 200-01, 387 s.e.2d at 501 (emphasis added). conclusion is dependent on the weight to be given the introduced." simpson, 162 va. at 642, 175 s.e. at 329. thus, your verdict must be based on the facts as disappears only when rebutted "as a matter of law." of them testified that the testator “fully underst[ood]” the so, each jury in a because those instructions properly informed the jury that, as 6 at the close of all the evidence, kiddell moved to strike testamentary capacity at the time of the question whether the presumption of testamentary capacity 25 and extent of her property, the members of her family and “to 517; see also higgins v. bowdoin, 238 va. 134, 141, 380 s.e.2d testamentary capacity, it is unclear that a jury will know that and signed by the [testatrix] . . . in such testamentary capacity and defendant, mr. alleged that judsen lacked testamentary capacity when she disappears.”) once labowitz presented evidence that the june virginia law that have the effect of shifting both the burdens judsen executed a new power of attorney naming labowitz as her 7 evidence sufficient to rebut it is introduced. 175 va. at 113, capacity. in my view, a trial court makes that determination. if reasonably fair-minded [persons] may differ as to the capacity.2 admitting the june will to probate nullified and the april will finally, the majority holds that if the evidence is in moreover, both laurie and labowitz testified that judsen became 14 law. quoting jury instructions from those cases, the majority 108, 7 s.e.2d at 125. the defendants asserted that, at the time positive facts to the contrary. . . . therefore, the weight to be given their testimony are matters peculiarly comes to his relief and dispenses with any evidence to the s.e.2d 499, 501 (1990). such a in a will contest, “the proponent of the will is entitled whether the presumption had been rebutted. furthermore, as the established facts or by substantial evidence “showing the true evidence to rebut it. thus, according to kiddell, it was occasions concerning the preparation of her will. according to as early as 1908, this court addressed the propriety of i fear that different juries will use varying definitions. even critical time for determining testamentary capacity.” thomason on appeal, kiddell argues that the presumption disappears at the time she executed the writing. presumption. where the evidence is in equipoise, the circuit court did not err in ruling that the presumption had not (1882)). see also virginia birth-related neurological injury omitted). the objecting party contended that the latter part of a presumption is not rebutted and prevails when "evidence terms of his will the presumption against partial intestacy present evidence on the issue of testamentary capacity.” the evidence did, in fact, rebut the presumption, was not made a cash gift for the dog’s care to laurie. judsen bequeathed comp. program v. young, 34 va. app. 306, 310-11, 541 s.e.2d 298, the court tells the jury that there is in all determine the truth or falsity of the testimony and to weigh the the presumption does not disappear unless, as a matter of law, finally, i point out that, under the majority's decision “determining the question of competency.” rust, 124 va. at 26, testamentary capacity at the time she executed the will at presence of the testator, but no form of thus, contrary to the majority's assertion, nothing in the proponent proved by the greater weight of the holding in hopkins: whether the [plaintiffs] had made out a prima facie case.”). and one-third to a “head trauma research center” to be chosen in s.e. 324 (1918); huff v. welch, 115 va. 74, 78 s.e. 573 (1913); instructions recited in our prior cases because those this evidence, however, was in conflict with the testimony has ruled that we have . . . rebutted the presumption.” the although laurie sent the april will to labowitz, labowitz did 1128, 1132 (ill. 1976) (once evidence opposing the presumption 2010, judsen’s health had deteriorated and she was admitted to a evidence is presented . . . presumptions become superfluous similarly, instruction 9 stated: two jury instructions, instructions 5 and 6, related to this diagnosed with a terminal illness in february 2010. on may 13, opponent establishes the testator's incapacity as a matter of report, he opined that judsen was “not competent” and “ha[d] a estate of louise bradford judsen disappears from the case."); heffenger v. heffenger, 3 a.2d 95, weedon v. weedon, 283 va. 241, 252-53, 720 s.e.2d 552, 558 5 the [c]ourt is going to find that that burden has been met by jury in determining the question of competency). sufficiently rebutted is a question of fact. given the opponents of the will to rebut the presumption of capacity. and it should apply its common understanding of the phrase a will for probate, to show testamentary capacity determine whether the evidence in this case was sufficient to proponent has proven compliance with statutory requirements for place of evidence until the opposing party comes forward with instructions 8 and 9. at the close of kiddell’s case, labowitz moved to strike s.e.2d at 160-61; jenkins, 152 va. at 440, 147 s.e at 260; rust, requirements for due execution, “the legal presumption of sanity kiddell, if you find that they have introduced would hold that it was not error for the circuit court to 38 huff, 115 va. at 76, 86, 78 s.e. at 575, 578.4 evidence on the question . . . of whether you rebutted it. if the court tells the jury that there is in all that he had with judsen, she was insistent on returning home, s.e.2d at 127. in such a case does not decide whether a presumption, operating case would have been over this morning.”3 will”), naming kenneth e. labowitz, an attorney, as the executor this appeal. will was prepared by laurie from an online template. strike labowitz’ evidence and, instead, allowing the issue of overcome by substantial evidence showing the true on the part of the testatrix at the time the will attorney in fact. labowitz testified that, during the meetings respectively april 27, 1915, and november 29, 1916 . . . rebutted the presumption.” this clarification, coupled with the err in giving instruction informing jury that in “all cases not, however, see judsen on the day she executed the june will. if the proponent failed to prove the element of capacity if believed, did not, as a matter of law, ascertain a presumption of law cannot be said to be became “upset” with laurie for sending labowitz “to [perform the circuit court also granted two jury instructions over functional equivalent of instructing the jury to determine sufficient evidence to rebut the presumption. chumbley, 190 va. 480, 57 s.e.2d 151 (1950); jenkins v. trice, nevertheless, holds that the circuit court did not err by giving be wholly in the handwriting of the testator, the testamentary capacity disappears when an opponent goes forward where, however, the sanity of the testator testamentary capacity was that kiddell presented sufficient witnesses shall subscribe the will in the when a word is commonly used and has an accepted meaning, a continuing, we stated: unlike the majority, i believe that the presumption of in fact, had labowitz simply not made the motion to presumption of testamentary capacity disappears in the face of evidence sufficient to rebut the presumption of question . . . of whether you rebutted it. if you hadn’t, this presumption of testamentary capacity by a preponderance of the s.e.2d 125, 128 (1940). however, kiddell’s contention that the dispose of the property.' " weedon, 283 va. at 252, 720 s.e.2d “[a]dequate; of such quality, number, force or value as is evidence that: with evidence sufficient to rebut the presumption. in my view, presumption arises where the will is “in writing i agree with the majority that the content of instructions existence of the presumption. the time she executed that will. that presumption could be evidence to rebut the presumption of testamentary capacity means 4 complaint. affirmed. (1982); accord hancock-underwood v. knight, 277 va. 127, 131, rebutted the presumption of testamentary capacity. the capacity, nor did they tell the jury to decide if the opponent that she was executing a will and knew how she wished to dispose there is an existent presumption in favor of the generally, “[t]estamentary capacity is the term used to similar to jury instructions approved by this court in rust and laurie kiddell (“laurie”); laurie’s husband, lee kiddell presumptions, cannot stand in the face of denied labowitz’ motion to strike, the trial was to continue, as evidence”). for purposes of the motion to strike, a trial court not have been addressed by the court prior to its instructions presumption. not been rebutted. issue of whether she rebutted the presumption as a matter of chief justice kinser, with whom justice lemons and justice mims opponent of a will has rebutted the presumption of testamentary 2 testamentary capacity that remained unless kiddell produced us. not one of those cases even tangentially involved the of her estate. in the june will, judsen bequeathed her dog and freely and voluntarily. judsen then executed the will. dunston field of neurology, reviewed judsen’s medical records, treatment testamentary capacity by a preponderance of the evidence unless the future will not know whether to instruct a jury in a will question you will have to consider these issues: partial summary judgment when it has granted a motion to strike. while the burden of proof is upon those offering 6 writing propounded is the will of a capable to shift to the opposing party the burden of producing evidence the only question in this case is whether testament.” we awarded kiddell this appeal on two issues: (1) when a trial court determines that the opponent has presented disposal of her assets. the two paralegals from his office, one advising the jury of the presumption in will contests and ("evidentiary presumptions . . . are designed to fill a factual i agree with the majority's holding that the circuit court a presumption disappears when the presumption is rebutted as a evidence for and against the presumption are jury instructions - civil, no. 48.040, at 48-19 (repl. ed. the [opponents] and therefore the motion to strike will be 36 superfluous because the parties have introduced evidence to duty is performed the presumption is functus officio and has no mysteries that gave rise to the presumptions.”); hertz v. record consideration” the presumption of testamentary capacity when when a conflict exists in the “testimony on a material point, or respectfully concur in part and dissent in part.2 2010, at the time she executed the writing. in carrying the ultimate burden of persuasion, instructions 8 principles is a question of law that, like all questions of law, execute a will. kiddell had to go forward with evidence of testamentary you shall find that the writing dated june s.e.2d at 128(emphasis added); schmitt v. redd, 151 va. 333, not give dunston the april will because labowitz had previously i respectfully concur in part and trial court’s decision on the motion to strike. id. at 26, 563 court concluded that kiddell had rebutted the presumption about drafting a will, and according to laurie, judsen stated dissent in part, and i would remand this case to the circuit measure its weight.” williams v. vaughan, 214 va. 307, 310, 199 then "failed to prove by the greater weight of the evidence" determining the question of competency. 300-01 (2001) (explaining that, under one theory, a presumption labowitz was entitled to a presumption that the testator had by him in the presence of at least two competent suggestion otherwise cannot stand in the face of our cases that denial of a motion to strike with the granting of a motion for it necessarily follows that when the trial court denied 2010 to be the last will [of] louise judsen if evidence, is to cast on the party against whom the presumption cases an existing presumption in favor of the testator’s sanity and capacity, which is to be proven) until evidence sufficient to overcome the his proof, whereat it disappears. it has no weight as evidence these instructions. during the colloquy regarding jury instructions, the circuit id. at 500, 57 s.e.2d at 160 (internal quotation marks omitted). duties under] the new power of attorney.” despite her anger, of the fact in issue is introduced"); richmond sand & gravel separately because i believe it is unnecessary for us to objects of her bounty when she executed the june will. in light given in tate, jenkins, rust, and huff. those instructions told on june 15, 2010, judsen executed another will (“the june "any" evidence, of incapacity. angry with her when she contacted labowitz to assist with kiddell sought to have the order the june will. the circuit court denied the motion and allowed 17 weight of the evidence that ms. judsen had november 1, 2012 of law. in my view, that test for determining when the erred in instructing the jury as to the existence of the disability that prevent[ed] [her] from making or communicating works, the duty of going forward with evidence, and when that 74, 76, 86, 78 s.e. 573, 575, 578 (1913). instructions in those cases did tell the jury that a majority explains, when the circuit court denied labowitz's not sufficient to rebut the presumption as a matter of law. the sound and disposing mind, and that she was signing the document facts to be to the contrary, the presumption and capacity, which is to be taken into consideration by the moving party. baysden v. roche, 264 va. 23, 25, 563 s.e.2d 725, labowitz, has failed to prove by the greater this court approved the following instruction based on its is put in issue by the evidence of the any responsible decisions concerning [her] property.” dr. plan, and medications. he opined that judsen’s cognitive on, it must be proved to the satisfaction of the “in ruling on a motion to strike, trial courts should not the presumption is rebutted. gibbs, 239 va. at 201, 387 s.e.2d amount of cash among her assets. citing kavanaugh, the majority, nevertheless, concludes that the owned by [a] defendant establishes a prima facie case that the did not err in granting instructions 8 and 9 or in refusing to strike). thus, the only ruling made by the circuit court on the by substantial evidence showing the true facts to be to the . . . created is rebutted or overcome by substantial evidence to prove that judsen had testamentary capacity when she executed disappears if evidence is produced to rebut the presumption); in complainants, laurie a. kiddell and leann m. when labowitz demonstrated that the testator executed the will or established facts. in kavanaugh v. wheeling, 175 va. 105, 7 s.e.2d 125 (1940), signature shall be made or the will acknowledged we review de novo.” hancock-underwood, 277 va. at 131, 670 presumption exists in favor of a testator's capacity and that business of its owners," was sufficient to present to the jury jury regarding the presumption"); breadheft v. cleveland, 110 that point. accordingly, the circuit court erred by granting indeed, to hold otherwise would improperly equate the when the proponent of a will enjoys the presumption of 64, 70, 154 s.e. 687, 689 (1930); jenkins v. trice, 152 va. 411, whether the circuit court erred by granting instructions 8 and care of her dog. dunston specifically reviewed with judsen the capacity by the greater weight of the evidence. the trial court as a matter of law was not before the circuit court and is not equipoise, the presumption of testamentary capacity "comes to proponent of the will to prove by the greater “the primary significance of a presumption is that it operates contrary shall have been introduced"); schmitt, 151 va. at 344, testamentary capacity. to include any family members as beneficiaries, judsen answered n.e. 662, 663 (ind. 1915) ("the ordinary function of most so- dunston that she was divorced. when dunston asked if she wished capacity when she signed it? to laurie, and she requested that the bequest to the “leukemia & called presumptions of law, as they relate to the law of wished to include any family members as beneficiaries and she va. 523, 526, 369 s.e.2d 397, 399 (1988). thus, under the facts of this case, the presumption disappeared, and 97 s.e. 324, 331 (1918); huff v. welch, 115 va. 74, 76, 86, 78 according to kiddell, even dunston had no knowledge of the to a ruling that kiddell’s evidence could potentially rebut the that the opponents had failed to rebut the presumption of entitled to “the greatest consideration” on the issue of a cases an existing presumption in favor of the proper place in the instructions to the jury."); united missouri was the submission of sufficient evidence to survive a motion to determine whether the opponents had presented sufficient connections, inc., 266 va. 362, 366, 585 s.e.2d 578, 581 (2003); instruction is an accurate statement of the relevant legal principles governing motions to strike when it “undertook to


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