MARION CASEY DEAN, CO-EXECUTOR AND CO-TRUSTEE, ET AL.
BARBARA MORRIS, ET AL
FROM THE CIRCUIT COURT OF ORANGE COUNTY. Joanne F. Alper, Judge Pro Tempore.
L. Steven Emmert (George O. Peterson; Tania M. L. Saylor; Sykes, Bourdon, Ahern & Levy; Peterson Saylor, on briefs), for appellants.
Philip J. Harvey (David G. Fiske; Isaac Post; Fiske & Harvey, on brief), for appellees.
[287 Va. 534] PRESENT: All the Justices.
CLEO E. POWELL, JUSTICE.
This appeal arises out of breach of contract suit brought against the estate of Marion Casey Dean (" Casey" ). In this case, we hold that the trial court's finding that an oral contract existed between Casey and his wife, Shirley Gregg Dean (" Shirley" ), is without clear and convincing evidence to support it. Therefore, we will reverse the judgment of the trial court.
I. FACTS AND PROCEEDINGS
Shirley married Casey on July 1, 1978. Both had children from their previous marriages. When Shirley and Casey married, they initially lived in Shirley's townhouse until it became too small, at which time they sold it and used the proceeds to purchase a larger townhome in the same community. After Casey sold his business to his son, Marion Casey Dean, Jr. (" Dean" ), Casey and Shirley sold the townhome, remodeled Casey's farmhouse in Orange County, and moved there.
Shirley died in August 1999. At the time, Barbara E. Morris (" Morris" ), Linda D. Gregg (" Gregg" ), and Joanne Sundell decided not to probate their mother's estate. Their decision was based on their belief that their mother had an oral contract with Casey for him to provide for them in his will. Morris claimed that she and her sisters remained close to Casey after their mother died.
After Casey's death in 2010, Morris and her sisters unsuccessfully attempted to get
Casey's estate documents from Dean. When Morris contacted the estate's attorney, she was told that she should have her attorney contact him. Morris then hired an attorney. Subsequently, the sisters reported receiving a check for $200,000 accompanied bye a release. Morris indicated that they did not cash it because they still had not seen any of the estate paperwork.
The sisters then sued Casey's estate for breach of an oral contract between him and their mother. At trial, Morris testified that she and her mother had discussed her mother's estate planning desires. Specifically, Morris testified that in 1996 because of her ailing mother's [287 Va. 535] upcoming surgery, Shirley told Morris that " Casey and I have discussed . . . asking you all to wait until after something happens to him, before you all inherit anything from me, before you get anything from the estate." Morris stated that Shirley told her that she and Casey had agreed that Morris and her sisters would inherit more if they waited until after Casey's death. Morris further testified that in May 1997, Shirley " mention[ed] something about the widow's third."
Morris also testified about a conversation that she had with Casey approximately a week and a half after her mother died. She stated that Casey spoke privately with her and showed her a document that she did not read. Casey told her that the document, which he kept in the safe, would not mean much to her then but that it would after he died, and that he was showing her because he wanted to be sure that his wishes regarding his estate were followed.
On cross-examination, Morris admitted that her mother did not tell her how much they would inherit if they waited and that Casey never told her not to probate her mother's will. She also admitted that her mother gave her a copy of her will around the same ...