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Kim v. Kim

Supreme Court of Virginia

December 7, 2017

Lili Kim, Appellant,
v.
Seung Chong Brian Kim, et al., Appellees.

         Upon an appeal from an order entered by the Circuit Court of Fairfax County, Nos. CL-2015-13844, CL-2015-15965 and FI-2015-1814

         Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion that the order of the circuit court should be affirmed.

         I.

         Woojhong Scott Kim (hereinafter "Scott") executed two testamentary documents, the Last Will and Testament of Woojhong Scott Kim (the "Will") and the Woojhong Scott Kim Revocable Trust Agreement (the "Trust"), eight days before his death while undergoing treatment for end-stage lymphoma at Johns Hopkins Hospital. Both the Will and the Trust were drafted by Seung Chong Brian Kim ("Brian"), Scott's brother and a licensed attorney. The Will and the Trust were drafted contemporaneously with the purpose of directing the disposition of Scott's assets after death. The Will pours over Scott's probate assets into the Trust and names Brian as the executor of Scott's estate.[1] The Trust appoints Brian as the successor trustee upon Scott's death. Brian is not a legatee under the Will and is not designated to receive a distribution of property or other interest under the Trust, [2] though he is allowed compensation in his capacities as trustee and executor.

         Scott's wife, Lili Kim ("Lili"), filed a complaint in the Circuit Court of Fairfax County averring, among other claims, that the Trust was the product of Brian's undue influence over Scott (henceforth the "Complaint Claim"). In the Complaint Claim, Lili seeks to void the Trust based on a theory of presumed undue influence.[3] In particular, she alleges that "[s]uspicious circumstances existed surrounding the execution" of the Trust and that at the time the Trust was executed Scott was "enfeebled in mind and body, " as his course of treatment entailed "morphine, oxycodone and other palliative care measures, including chemotherapy that rendered him unconscious and unaware of his surroundings, " and "entirely dependent on others for assistance with his care." She further asserts that "[i]n addition to the suspicious circumstances surrounding the execution" of the Trust, "Brian stood in a fiduciary and confidential relationship" to Scott, in that Scott "frequently relied upon Brian" for legal and business advice associated with his personal and business affairs. Lili contends that prior to execution of the Trust, Scott had no estate planning documents in place, that Brian used his position to procure the Trust, and that the Trust "expresses an intention to make a disposition of [Scott's] property contrary to his previously expressed desires."

         Brian separately filed a complaint in the Circuit Court of Fairfax County seeking to establish the Will as the true last will and testament of Scott, to terminate Lili's previous appointment as administrator of Scott's estate and qualify Brian as executor, and to enjoin Lili from interfering with management of Scott's estate. In response to Brian's suit, Lili filed a counterclaim (henceforth the "Counterclaim") asserting that Scott executed the Will under Brian's undue influence and that the Will is, therefore, void. The allegations in the Counterclaim mirror those in the Complaint Claim.

         Brian subsequently filed a combined demurrer and plea in bar to the Counterclaim. Brian argued, among other points, that the Counterclaim did not allege that he was a beneficiary of either the Will or Trust and that the documents themselves showed that he was not a beneficiary of the Will or Trust. The circuit court sustained the plea in bar on those grounds and found the demurrer and all other issues raised by Lili's Counterclaim moot. The circuit court dismissed the Counterclaim with prejudice, ruling that "Lili could not change the Will or the Trust, and thus amendment of her pleadings would be futile." Thereafter, Brian filed a motion for summary judgment seeking dismissal of Lili's Complaint Claim, which the circuit court granted.[4]

         II.

         Lili argues the circuit court erred in dismissing her claims of undue influence on the basis that Brian was not a beneficiary because Brian derived a potential benefit from the Will and Trust due to the discretion he was given, as trustee, to make distributions of Trust property and the compensation to which he was entitled for performance of his duties as executor and trustee.

         Lili's claims are premised on a theory of presumed undue influence based on allegations of circumstantial facts.[5] In the context of testamentary documents, a presumption of undue influence arises upon proof of the following elements: (1) the testator was enfeebled in mind when the testamentary document was executed; (2) the testator named a beneficiary who stood in a relationship of confidence or dependence; and (3) the testator previously had expressed an intention to make a contrary disposition of the testator's property. See, e.g., Weedon v. Weedon, 283 Va. 241, 255, 720 S.E.2d 552, 559 (2012); Parish v. Parish, 281 Va. 191, 202, 704 S.E.2d 99, 105-06 (2011); Martin v. Phillips, 235 Va. 523, 527-28, 369 S.E.2d 397, 399-400 (1988).[6]The existence of a confidential relationship is insufficient, alone, to establish the second element; it "must be accompanied by activity on the part of the dominant person in procuring or preparing the will in his favor before a presumption of undue influence will arise." Martin, 235 Va. at 528, 369 S.E.2d at 400 (emphasis added).

         Lili does not allege in her pleadings that Scott named Brian as a beneficiary in his Will or Trust or that Brian procured or prepared the Will or Trust in his favor. The Will does not, in fact, name Brian as a beneficiary and the Trust does not expressly provide for Brian to receive a distribution of any share of Trust property. Neither Brian's entitlement to compensation as executor and trustee, nor his power as trustee to choose beneficiaries of certain Trust property make him a beneficiary of the Will or Trust. Lili argues that Brian could potentially derive a benefit if he "diverted and distributed" Trust property to himself or exercised his power as trustee to choose one or both of his children to receive a distribution under Article Seventh of the Trust. Such an uncertain and contingent possibility of some future benefit does not confer beneficiary status upon Brian for the purpose of establishing a presumption of undue influence.[7]

         For the foregoing reasons, we hold that the circuit court did not err in dismissing, with prejudice, Lili's claims of undue influence.[8] Accordingly, the order of the circuit court is affirmed.

         This order shall be certified to the said circuit court and shall be ...


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