LAWRENCE E. GELBER, CO-EXECUTOR OF THE ESTATE OF BEVERLY E. GELBER, DECEASED, AND CO-TRUSTEE OF THE BEVERLY E. GELBER TRUST U/A DATED DECEMBER 1, 2010, AS RESTATED AND AMENDED, ET AL.
MERYL ANN GLOCK
THE CIRCUIT COURT OF HENRICO COUNTY Gary A. Hicks, Judge
PRESENT: All the Justices
ELIZABETH A. McCLANAHAN, JUSTICE
case involves the validity of instruments executed by Beverly
E. Gelber ("Mrs. Gelber") two months prior to her
death and purporting to convey her home and personal property
to her daughter, Meryl Glock. Lawrence ("Larry") E.
Gelber and Darlene A. Fleischmann, the executors of Mrs.
Gelber's estate, who are also her children, contend that
Meryl wrongfully induced Mrs. Gelber to execute a deed of
gift and bill of sale through undue influence and
fraud. They also assert that the bill of
sale, executed by Mrs. Gelber in her individual capacity, was
of no effect because Mrs. Gelber's personal property was
held in trust.
Executors challenge the circuit court's rulings denying
their motion for partial summary judgment on the issue of
Mrs. Gelber's execution of the bill of sale in her
individual capacity and granting Meryl's motion to strike
the Executors' evidence at trial in support of their
claims of undue influence, promissory fraud, and civil
conspiracy. The Executors also challenge the circuit
court's rulings on the exclusion from evidence of Mrs.
Gelber's declarations disavowing the property transfers
and the exclusion from evidence of records of real estate tax
assessments on Mrs. Gelber's home.
we conclude that the circuit court did not err in denying the
motion for partial summary judgment on the issue of title and
possession of Mrs. Gelber's personal property, in
excluding records of real estate tax assessments on Mrs.
Gelber's home, and in granting the motion to strike the
Executors' evidence on the civil conspiracy claims, we
hold that the circuit court committed error in excluding from
evidence the declarations made by Mrs. Gelber disavowing the
property transfers and in granting the motion to strike the
Executors' evidence on their claims for undue influence
and promissory fraud.
December 1, 2010, Mrs. Gelber executed several estate
planning documents, including a will and trust agreement. The
2010 will revoked any other wills, which included a previous
will that had been executed by Mrs. Gelber in 2009, and gave
Mrs. Gelber's real and personal property to her trustee
under the 2010 trust agreement. The 2010 trust agreement
named Mrs. Gelber as the trustee and amended a trust
agreement previously executed by her in 2009. The 2010 trust
agreement directed that upon Mrs. Gelber's death, the
successor trustee distribute her assets in equal shares to
her children. Mrs. Gelber also executed a tangible personal
property deed by which she conveyed all of her tangible
personal property to herself as trustee.
18, 2014, while Mrs. Gelber was an inpatient at St.
Mary's Hospital in Richmond, she executed a deed of gift
in which she conveyed her home on Edwardsville Drive in Glen
Allen to Meryl, one of her five children. On that same date,
Mrs. Gelber executed a bill of sale in which she conveyed to
Meryl all items of her personal property located at her
home.Mrs. Gelber, who was 87 years old
at the time and suffering from terminal cancer, later made
statements, both orally and by signed typewritten
declaration, in which she disavowed the property transfers.
More specifically, Mrs. Gelber stated that she did not intend
to make the transfers, had no recollection of the execution
of the documents, was in a weakened mental, physical, and
emotional condition when she executed the documents, and did
so upon undue influence and misrepresentations made to her by
August 19, 2014, Mrs. Gelber, individually, by and through
her attorneys-in-fact, Larry and Darlene, filed a complaint
against Meryl alleging undue influence and fraud in
connection with Mrs. Gelber's execution of the deed of
gift and bill of sale. After Mrs. Gelber
died on September 19, 2014, Larry and Darlene were
substituted as plaintiffs in their capacities as executors of
Mrs. Gelber's estate and trustees of her trust.
Subsequently, the Executors added a count alleging a civil
conspiracy between Meryl and her sister and brother-in-law,
Linda and Philip Landa, though Meryl remained the sole
filed a counterclaim asserting breaches of contract,
statutory warranty, and express warranty against the
Executors and seeking damages and attorney's fees
incurred in defending the claims made by Larry and Darlene in
their capacities as trustees of Mrs. Gelber's trust.
to trial, the Executors filed a motion for partial summary
judgment as to title and possession of the personal property
on the grounds that the bill of sale was signed by Mrs.
Gelber in her individual capacity and was of no effect since
the personal property had been conveyed in 2010 to Mrs.
Gelber in her capacity as trustee. Also prior to trial, Meryl
filed a motion in limine seeking to exclude evidence of Mrs.
Gelber's declarations not contemporaneous with the
execution of the deed of gift and bill of sale to establish
the substantive fact of undue influence. The circuit court
denied both motions and the parties proceeded to
trial, the circuit court excluded from evidence tax
assessment records on Mrs. Gelber's home that the
Executors sought to introduce to prove the home's value.
After the Executors presented their evidence, the circuit
court granted Meryl's motion to strike the Executors'
evidence as to all claims. In granting the motion to strike,
the circuit court ruled that declarations made by Mrs. Gelber
disavowing the property transfers were not admissible and
would not be considered in determining whether the Executors
had met their burden of proof. At a separate hearing, the
circuit court entered judgment for Meryl on her claim for
DENIAL OF MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PERSONAL
Executors argue that the circuit court erred in denying their
motion for partial summary judgment as to title and
possession of Mrs. Gelber's personal property. They
contend that the bill of sale failed to transfer title over
the personal property, as a matter of law, because Mrs.
Gelber signed the bill of sale in her individual capacity
without referencing her capacity as trustee. We disagree with
the Executors that they were entitled to partial summary
judgment on this ground. Mrs. Gelber retained the power to
revoke prior conveyances to her trust and was, therefore,
empowered to withdraw the property from the trust upon
substantial compliance with the provisions of the trust
agreement, which required only written notice to herself as
Gelber was the sole settlor,  trustee, and lifetime beneficiary of her
trust under the provisions of the 2010 trust agreement.
Although Mrs. Gelber maintained the right to designate a
successor trustee to serve upon her resignation, incapacity,
or death, and named therein certain individuals to serve as
trustees should she fail to designate a successor trustee,
Mrs. Gelber remained the sole trustee at the time the bill of
sale was executed by her. The trust agreement provided that
"my Trustee shall distribute principal from the trust as
I may direct." The trust agreement also expressly
reserved to Mrs. Gelber "the right to revoke or amend
this agreement by a writing (other than a will) signed by me
and delivered to my Trustee during my lifetime."
Therefore, as the settlor, trustee, and lifetime beneficiary,
Mrs. Gelber maintained control over the property she placed
in trust under the 2010 revocable trust agreement. See
Murnan v. Stewart Title Guar. Co., 585 F.Supp.2d 825,
834 (E.D. Va. 2008), vacated in part on other
grounds, 607 F.Supp.2d 745 (E.D. Va. 2009) ("[A]
grantor who retains the sole discretionary power to revoke
the trust owns the right to eliminate the trust and thereby
own the trust property outright any time she chooses to do
Mrs. Gelber possessed the power to amend or revoke the trust
upon substantial compliance with the provisions of the trust
agreement. See Code § 64.2-751(C)(1) ("The
settlor may revoke or amend a revocable trust . . . [b]y
substantial compliance with a method provided in the terms of
the trust."). See also Austin v. City of
Alexandria, 265 Va. 89, 95, 574 S.E.2d 289, 292 (2003)
(when a trust is revocable, the settlor retains the right to
withdraw property from the trust in accordance with the terms
specified by the trust agreement). The only requirement
imposed upon Mrs. Gelber for exercising her rights under the
2010 trust agreement was "a writing . . . signed by me
and delivered to my Trustee during my lifetime."
previously recognized that where the settlor of a revocable
trust is also the trustee, a requirement of written notice to
the trustee of the settlor's intention to revoke a prior
conveyance may be satisfied by the settlor's written
execution of instruments conveying the trust property to
another party. See id. at 96, 574 S.E.2d at 293. In
Austin, the settlor executed and recorded a deed in
1993 conveying real property to himself as trustee under a
declaration of trust. The pertinent provisions of the
declaration of trust named the settlor as the initial
trustee, named the settlor as the income beneficiary during
his lifetime, provided for discretionary distributions of
corpus by the trustee to the settlor, and provided that
"by signed instruments delivered to the Trustee, "
the settlor may withdraw property from the trust "upon
giving reasonable notice in writing to the Trustee."
Id. at 91-92, 574 S.E.2d at 290. In 1999, the
settlor executed a deed in his individual capacity conveying
the trust property to himself as trustee of a newly created
successor trustee of the 1993 trust challenged the 1999 deed
as ineffective since the property previously had been
conveyed by the settlor to himself as trustee of the 1993
trust. With regard to the settlor's compliance with the
provisions of the 1993 trust, we reasoned that because the
settlor was the trustee of the 1993 trust, written notice of
the settlor to himself as trustee was a
"non-issue." Id. at 96, 574 S.E.2d at 293.
Therefore, we accepted the contention that the requirement of
notice in writing to the trustee was satisfied by the
settlor's "signed instruments" establishing the
1999 trust and conveying the property to the 1999 trust.
our holding in Austin that the written notice
requirement of the 1993 trust was satisfied, we further
concluded that the settlor failed to comply with the
revocation and reversion of title provisions of the
1993 deed. The deed provided that any revocation of the
trust agreement shall not be effective as to the property
conveyed unless the grantor executed a deed, duly recorded,
evidencing the revocation and reversion of title. See
id. at 96-97, 574 S.E.2d at 293. Because the 1999 deed
was not executed by the grantor in his capacity as trustee
and contained no reference to the 1993 trust, we held that
the 1999 deed failed to satisfy the revocation and
reversion title requirements of the recorded 1993 deed.
Id. In contrast, the tangible personal property deed
executed by Mrs. Gelber in which she conveyed her personal
property to herself as trustee under the 2010 trust agreement
contained no provisions requiring a deed evidencing a
revocation or reversion of title to the personal property.
Mrs. Gelber retained control over the property she conveyed
to herself as trustee under the terms of the 2010 trust
agreement and reserved to herself the power to withdraw
property from her trust or revoke her prior conveyance of
personal property to the trust upon written notice to herself
as trustee. We conclude that Mrs. Gelber's written
execution of the bill of sale substantially complied with the
provision of the trust agreement requiring a writing signed
by her and delivered to herself. Thus, we reject the Executors'
contention that the bill of sale failed to transfer title
over the personal property, as a matter of law, on the ground
that Mrs. Gelber signed the bill of sale in her individual
EXCLUSION OF DECLARATIONS BY MRS. GELBER
Executors assign error to the circuit court's exclusion
from evidence of declarations made by Mrs. Gelber disavowing
the deed of gift and bill of sale. They argue that her
declarations were admissible under the hearsay exception
provided by Code § 8.01-397 (the "Dead Man's
statute"). We review the circuit court's decision to
admit or exclude evidence using an abuse of discretion
standard. John Crane, Inc. v. Jones, 274 Va. 581,
590, 650 S.E.2d 851, 855 (2007). This review necessarily
includes a determination of whether the circuit court was
guided by an erroneous legal conclusion or flawed
interpretation of Code § 8.01-397. See Lawlor v.
Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 861-62
the circuit court initially denied Meryl's motion in
limine to exclude declarations by Mrs. Gelber not made
contemporaneously with the execution of the deed of gift and
bill of sale and permitted most of Mrs. Gelber's
statements into evidence, the circuit court subsequently
ruled the statements were not admissible when it granted
Meryl's motion to strike the Executors' evidence. The
circuit court explained that "[t]he Dead[ M]an['s]
[s]tatute is not available to the [Executors] as to hearsay
exceptions for Ms. Gelber's declarations not
contemporaneous with the execution of the deed of gift and
the bill of sale, " that "Virginia case law
supports this, " and that "[t]his would also
perplex and mislead a jury." We conclude the circuit
court erred in its ruling on the admissibility of Mrs.
Gelber's declarations under the Dead Man's statute.
Code § 8.01-397 states, in pertinent part:
In an action by or against a person who, from any cause, is
incapable of testifying, or by or against the committee,
trustee, executor, administrator, heir, or other
representative of the person so incapable of testifying . . .
whether such adverse party testifies or not, all entries,
memoranda, and declarations by the party so incapable of
testifying made while he was capable, relevant to the matter
in issue, may be received as evidence in all proceedings
including without limitation those to which a person under a
disability is a party.
(Emphasis added.) Under the plain language of the statute,
"all entries, memoranda, and declarations" by Mrs.
Gelber prior to her death are admissible to the extent they
are "relevant to the matter in issue." Id. See
also Va. R. Evid. 2:804 (b)(5) (providing hearsay
exception for statements by party incapable of testifying and
incorporating language of Code § 8.01-397); Charles E.
Friend & Kent Sinclair, The Law of Evidence in Virginia
§ 10-7[f], at 575-76 (7th ed. 2012) (noting that Code
§ 8.01-397 provides that "in any case by or against
a decedent/incapacitated person, the hearsay out-of-court
statements of the decedent/incapacitated person are generally
admissible"). Contrary to the circuit court's
ruling, therefore, the hearsay exception set forth in Code
§ 8.01-397 contains no language that would limit its
application to Mrs. Gelber's declarations that were
contemporaneous with her execution of the deed of gift and
bill of sale.
extent that the circuit court relied upon our decision in
Wallen v. Wallen, 107 Va. 131, 57 S.E. 596 (1907),
its reliance was misplaced. In Wallen, we held that
"declarations of the testator, not made
contemporaneously with the execution of his will, are
relevant evidence, to show his feelings and affections
towards the natural objects of his bounty, his mental
condition as reflecting upon his testamentary capacity, but
are not admissible to establish the substantive fact of undue
influence." Id. at 157, 57 S.E. at 601. We
reasoned that such declarations were hearsay and could only
be admitted if made contemporaneously with the execution of
the will as part of the "res gestae" to show the
state of mind of the testator. Id. at 152-57, 57
S.E. at 600-01 ("The declarations are purely hearsay,
being merely unsworn declarations, and, when no part of the
res gestae, are not within any of the recognized
exceptions, admitting evidence of that kind.") (quoting
Throckmorton v. Holt, 180 U.S. 552, 573
(1901)). Our decision was rendered
when the Dead Man's statute precluded the surviving party
from testifying (with certain exceptions) when the opposing
party was incapable of testifying. At that time, the Dead
Man's statute contained no hearsay exception for
declarations made by the party incapable of testifying.
See Pollard's Code § 3346 (1904).
1919, Code § 3346 was repealed and replaced by Code
§ 6209 (the predecessor to Code § 8.01-397), which
allowed the admission of testimony of the surviving party and
the admission of the declarations of the party incapable of
testifying. The goal of the plenary revisions of the Code
with respect to competency issues in 1919, including the Dead
Man's statute, was to "remove 'practically all
disqualifications, ' and thus permit the courts to hear
'all evidence bearing on the question at issue' just
as usual 'in the business affairs of life.'"
Friend & Sinclair, supra, § 10-7[a], at 568
(quoting Epes v. Hardaway, 135 Va. 80, 88, 115 S.E.
712, 715 (1923)); see also Arwood v. Hill, 135 Va.
235, 241, 117 S.E. 603, 605 (1923) (explaining that the
amendment to the Dead Man's statute "was intended to
remove all disqualifications affecting the competency of
witnesses in suits by or against the estates of persons
laboring under disability or who are from any cause incapable
of testifying"). Therefore, our
holding in Wallen, which was rendered before the
Dead Man's statute contained a hearsay exception for
declarations of a party incapable of testifying, cannot be
relied upon to exclude declarations by Mrs. Gelber that
clearly fall within the hearsay exception set forth in Code
Mrs. Gelber's declarations, "relevant to the matter
in issue, " were admissible under the hearsay exception
provided for by Code § 8.01-397, the circuit court
abused its discretion in ruling that Ms. Gelber's
declarations not contemporaneous with the execution of the
deed of gift and the bill of sale were
EXCLUSION OF REAL ESTATE TAX ASSESSMENTS
Executors argue that the circuit court erred in refusing to
admit records of the real estate tax assessments on Mrs.
Gelber's home. The circuit court sustained Meryl's
objection to the admission of the records on the ground that
the records constituted inadmissible hearsay. The Executors
contend that the records were admissible under the public
records hearsay exception. As stated previously, we review
the circuit court's decision to exclude the tax
assessment records under an abuse of discretion standard.
See John Crane, Inc., 274 Va. at 590, 650 S.E.2d at
Larry's testimony at trial, the Executors sought to
introduce a record of the 2015 real estate tax assessment on
Mrs. Gelber's home as well as a record of assessment
information for prior tax years dating back to 2006. The
documents, certified as records of the Real Estate Assessment
Division of the Henrico County Finance Department, contained
the County's assessed value of Mrs. Gelber's home in
2015 and the assessed values in prior years. The purpose for
which the Executors sought to introduce the tax assessment
records was to establish the value of Mrs. Gelber's home.
the information contained within the tax assessment records
was offered by the Executors to establish the truth of the
matters asserted therein, i.e., the value of Mrs.
Gelber's home, the proffered exhibits were hearsay.
See Va. R. Evid. 2:801(c) (defining
"hearsay" as "a statement, other than one made
by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted"); Arnold v. Wallace, 283 Va. 709,
713, 725 S.E.2d 539, 541 (2012) ("A hearsay objection
lies against the admission of written statements which were
made out of court and are offered for the truth of what they
say."). Therefore, the tax assessment records were not
admissible unless they fell within a recognized exception to
the hearsay rule. See Va. R. Evid. 2:802 (stating
that "[h]earsay is not admissible except as provided by
these Rules, other Rules of the Supreme Court of Virginia, or
by Virginia statutes or case law").
Executors rely on Rule 2:803(8), which provides a hearsay
exception for "records, reports, statements, or data
compilations, in any form, prepared by public offices or
agencies, setting forth (A) the activities of the office or
agency, or (B) matters observed within the scope of the
office or agency's duties, as to which the source of the
recorded information could testify if called as a
witness." The Executors argue that Meryl did not contest
the authenticity of the tax assessment records, which were
prepared by a public official and set forth matters observed
within the scope of the official's duties.
it is true that Rule 2:803(8) provides a hearsay exception
for public records, the Rule does not render
opinions contained within the hearsay automatically
admissible. See Friend & Sinclair,
supra, § 15-1[d], at 905 ("The objection
that an item of proffered proof is hearsay is but one of the
many grounds on which the proof might be excluded.
Conversely, satisfying the hearsay rule by
identifying . . . a recognized 'hearsay exception'
which allows the proof to be received despite the general
hearsay ban . . . solve[s] only the hearsay
problem.") (emphasis in original). "The traditional
rule has been that the opinion rule applies to hearsay
declarations to the same extent that it applies to in-court
testimony. Thus, a hearsay declaration containing a statement
of opinion must, to be admissible, satisfy the requirements
of both the rule prohibiting admission of hearsay and the
rules restricting the expression of opinion by
witnesses." Id. In particular, we have held
that the official documents exception to the hearsay rule
does not "permit the introduction of opinion evidence
contained in any such records." Smith v. Woodlawn
Construction Co., 235 Va. 424, 432, 368 S.E.2d 699, 704
(1988) (holding that record of assessed value of the property
by local commissioner of revenue was properly excluded).
assessment records on Mrs. Gelber's property contained
the expert opinion of the public official as to the value of
Mrs. Gelber's home. Admission of the tax assessment
records would have allowed the Executors to introduce expert
opinion as to the value of Mrs. Gelber's home without
requiring them to qualify an expert or satisfy the
foundational requirements for admission of expert testimony.
"The admission of hearsay expert opinion without the
testing safeguard of cross-examination is fraught with
overwhelming unfairness to the opposing party. No litigant in
our judicial system is required to contend with the opinions
of absent 'experts' whose qualifications have not
been established to the satisfaction of the court, whose
demeanor cannot be observed by the trier of fact, and whose
pronouncements are immune from cross-examination."
McMunn v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908,
912 (1989); see also Harman v. Honeywell Int'l,
Inc., 288 Va. 84, 93 n.4, 758 S.E.2d 515, 520 n.4 (2014)
("This Court has long recognized the dangers of
admitting hearsay expert opinion.").
because the tax assessment records contained hearsay expert
opinion, we conclude that the circuit court did not abuse its
discretion in excluding them from the evidence at trial.
RULINGS ON MOTION TO STRIKE
Executors assert that the circuit court erred in granting
Meryl's motion to strike the evidence as to their claims
of undue influence, fraud, and civil conspiracy. When ruling
on a motion to strike the plaintiff's evidence, the
circuit court must "accept as true all the evidence
favorable to the plaintiff as well as any reasonable
inference a jury might draw therefrom which would sustain the
plaintiff's cause of action." Austin v.
Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285,
287 (1997). The circuit court may not "judge the weight
and credibility of the evidence, and may not reject any
inference from the evidence favorable to the plaintiff unless
it would defy logic and common sense." Id. When
reviewing a circuit court's decision granting a ...