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PRESENT:  Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and

Agee, JJ., and Stephenson, S.J.

CHARLES WHEELER JONES, ET AL.

v.  Record No. 030123     OPINION BY JUSTICE ELIZABETH B. LACY
  January 16, 2004
DAVID W. K. PEACOCK, JR., EXECUTOR
AND TRUSTEE UNDER THE WILL OF
GERALDINE M. JONES, DECEASED, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge

In this appeal, Charles Wheeler Jones and Richard
Franklin Jones ask this Court to reverse the trial court's
judgment that their father, B. Franklin Jones, did not have
the requisite mental capacity to execute a claim for an
elective share of his deceased wife's augmented estate
pursuant to Code   64.1-13.  Because we conclude that the
trial court utilized the wrong standard for mental competency
and that the record does not show Franklin Jones was
incompetent to execute the claim, we will reverse the judgment
of the trial court and remand the case for further
proceedings.
FACTS AND PROCEEDINGS
Geraldine M. and B. Franklin Jones (the Joneses) were
married for 15 years.  During the marriage the Joneses lived
at Westminster Canterbury, a retirement home and nursing
facility.  For the last five years of the marriage, Mrs. Jones
resided in the health care section of the facility.  Although
they lived apart, the Joneses saw each other on a daily basis
and generally dined together.
Mrs. Jones died on May 15, 2000.  Her will, dated April
11, 1995, was admitted to probate.  According to the terms of
the will, the majority of Mrs. Jones' estate was to be held in
trust for the lifetime benefit of Franklin Jones.  Upon his
death, any remaining assets were to be distributed to certain
named beneficiaries.  Mrs. Jones had no children, but Franklin
had two sons by a prior marriage.
At the time of his wife's death, Franklin resided in the
assisted living section of Westminster Canterbury.  On August
22, 2000, he was moved to a nursing home level of care because
he refused to take food, fluids, or medication, had expressed
a desire to die, and was found wrapping a call bell cord
around his neck.
On August 24, 2000, Richard Jones visited his father.  
During this visit Richard gave his father a completed but
unsigned Notice of Claim for Elective Share of Augmented
Estate (Notice of Claim).  Franklin signed the Notice of Claim
and his signature was notarized by Harriet Smith, an employee
of Westminster Canterbury.  Richard Jones filed the Notice of
Claim with the clerk of the Circuit Court for the City of
Virginia Beach later that day.  Franklin died two days later
on August 26, 2000 at the age of 90.
David W. K. Peacock, Executor and Trustee of Mrs. Jones'
estate (Executor), filed an amended bill of complaint for
advice and guidance asserting that the Notice of Claim was not
valid because Franklin Jones was not competent to execute it
on August 24, 2000.  The executor argued that Code   64.1-13
requires a notice of claim to be recorded under the same
conditions as other recorded instruments such as deeds and
contracts, and thus, a notice of claim is analogous to a
contract.  Therefore, according to the Executor, the mental
capacity required to validly execute a deed or contract should
also be required in order to validly execute a notice of claim
under Code   64.1-13.   Based on the deposition testimony and
medical records in this case, the Executor argued that
Franklin Jones did not have the requisite mental capacity to
validly execute the Notice of Claim on August 24, 2000.
The respondents, Charles and Richard Jones, asserted that
the Notice of Claim was analogous to a testamentary document
and, therefore, the requisite mental capacity should be that
applicable to the execution of wills.   Continuing, the sons
maintained that regardless of which standard was applied,
Franklin Jones was competent to validly execute the Notice of
Claim on August 24, 2000.
With the agreement of the parties, the case was submitted
to the trial court on the pleadings, deposition testimony,
medical records, and argument of counsel.  Applying the level
of competence required to execute a deed or other legally
binding contract, the trial court held that Franklin Jones
"did not understand the nature of the notice of claim and the
consequences of signing it" and therefore, the Notice of Claim
was invalid.  We granted the sons this appeal.
DISCUSSION
A.  Standard of Competency to Execute a Notice of Claim
The parties and the trial court recognized that we have
not previously considered the appropriate competency standard
for executing a notice of claim under the augmented estate
statutes.  Resolving the issue is a matter of law, and we
apply a de novo standard of review to the judgment of the
trial court.  Firebaugh v. Whitehead, 263 Va. 398, 402, 559
S.E.2d 611, 614 (2002).
In concluding that execution of a notice of claim
requires the same level of mental capacity as that required to
execute a deed or contract, both the trial court and the
Executor relied in part on Code   64.1-13.  Subsection A of
that section prescribes that a written notice of claim filed
with the clerk of court be "upon such acknowledgment or proof
as would authorize a writing to be admitted to record under
Chapter 6 ( 55-106 et seq.) of Title 55."  The trial court
concluded, and the Executor argues, that Code   64.1-13
implicitly suggests a similarity between contracts, deeds, and
notices of claim because the referenced sections in Chapter 6
of Title 55 govern other recorded instruments such as deeds
and contracts.
We do not find this argument persuasive.  The referenced
sections in Title 55 address only the form that a document
must meet to be admitted to record.  There is nothing in these
statutory provisions, or any other, that establishes the level
of competence required to execute a notice of claim.
The parties and the trial court also looked to cases from
other jurisdictions for guidance:  Foman v. Moss, 681 N.E.2d
1113 (Ind. Ct. App. 1997); In re Dellow's Estate, 287 N.W. 420
(Mich. 1939); In re Estate of Disney, 550 N.W.2d 919 (Neb.
1996); In re Estate of Bergren, 47 N.W.2d 582 (Neb. 1951); Rau
v. Krepps, 133 S.E. 508 (W. Va. 1926).  The trial court relied
primarily on language contained in the West Virginia case of
Rau v. Krepps.  In that case, the surviving spouse had not
executed any written document claiming a statutory share of
the estate, and the issue was whether such election could be
implied by the actions of the surviving spouse.  Rau, 133 S.E.
at 510-12.  The mental capacity of the surviving spouse was
not at issue.  Neither Rau nor any of the cases cited by the
parties directly equated the competency level for taking an
elective share of a deceased spouse's property with that
required for executing a contract, deed, or will.
Implicit in these cases, however, is the proposition that
the execution of an instrument claiming an elective share is
not the same as the execution of a contract or will.  We
agree.  A contract involves a bilateral exchange, a meeting of
the minds, and an understanding of obligations undertaken ?
factors not present in taking an elective share.  A will
requires action by only the testator and does not affect the
testator's present or future interests.  Choosing an elective
share over provisions made in a will, although a unilateral
act, does affect future interests of the surviving spouse.  
Indeed, the courts in each of the cases relied upon by the
parties described the level of competence in terms of the
consequences of the action at issue.  Disney, 550 N.W.2d at
924 (whether surviving spouse was capable of understanding and
protecting his or her own interests when instrument executed);
Foman, 681 N.E.2d at 1117, citing Bergren, 47 N.W.2d at 589
(whether widow had "the capacity to understand what she was
doing and to decide intelligently whether she desired to
execute the instrument"); Dellow, 287 N.W. at 422 ("If [the
widow] was capable of reasoning and taking reasonable action,
she was competent to make an election").  We agree that the
distinct nature of an election warrants a level of competency
uniquely connected to that act.
We hold that at the time an election is made under Code
 64.1-13, the surviving spouse must have the capacity to
understand his right to elect against the will and receive a
share of the estate established by law and to know that he is
making such an election.  Competency to execute the notice of
claim does not require a surviving spouse to know the specific
amount that will be received as a result of such an election.  
Indeed, that amount may not be determined without litigation.  
Chappell v. Perkins, 266 Va. 413, 418, 587 S.E.2d 584, 586-87
(2003).  Whether a surviving spouse exercises good judgment
when making an election is not relevant to the issue of mental
capacity to make such a choice.  See, e.g., Thomason v.
Carlton, 221 Va. 845, 855, 276 S.E.2d 171, 177 (1981) (an
unwise decision or mistake in judgment in making a will is not
evidence of incompetency); Smyth Bros.-McCleary-McClellan Co.
v. Beresford, 128 Va. 137, 169-70, 104 S.E. 371, 382 (1920)
(capacity to make a contract controls, not the propriety or
impropriety of any dispositions of the maker's property that
may be made therein); Greer v. Greers, 50 Va. (9 Gratt.) 330,
333 (1852) (testator does not lack capacity merely because his
disposition appears unreasonable or imprudent).
Accordingly, we hold that the trial court erred in
applying the standard for mental capacity required to execute
a deed or contract to the execution of a notice of claim
pursuant to Code   64.1-13.  Although the trial court applied
the wrong standard, the parties have acknowledged that because
the evidence in this case was solely in the form of deposition
testimony, we need not remand this case for a determination of
competency, but can resolve that issue based on the record
before us.  Kaplan v. Copeland, 183 Va. 589, 593, 32 S.E.2d
678, 679 (1945).
B.  Factual Finding Regarding Competency
In determining whether a party was competent to make an
election under Code   64.1-13, we begin with the presumption
that all persons are competent, and the party challenging this
presumption has the burden of establishing incompetency.  
Brown v. Resort Developments, 238 Va. 527, 529, 385 S.E.2d
575, 576 (1989).
Franklin Jones' two treating physicians testified by
deposition.  Dr. Jerry H. Morewitz, a psychiatrist, began
treating Franklin Jones for mild to moderate depression in
February 2000.  Throughout his treatment, Dr. Morewitz found
Jones alert and with appropriate mental skills.  The last time
Dr. Morewitz saw Jones was August 22, 2000, the day Jones had
been transferred to the health care facility because he would
not take food, water, or medications.  On that occasion, Jones
would not communicate with Dr. Morewitz.
Dr. Otarod Bahrani, Jones' primary care physician, also
saw Jones on August 22, 2000.  Jones did communicate with Dr.
Bahrani.  According to Dr. Bahrani, Jones was alert and
oriented on that date.
Both doctors testified that Franklin's weakening
condition could cause his mental state to fluctuate, but
neither doctor could form an opinion as to whether Franklin
Jones was competent to sign the Notice of Claim form on August
24, 2000.  
Nothing in the testimony of either physician indicates
that Franklin Jones lacked the capacity to understand his
right to claim an elective share under Code   64.1-13 or to
know that he was executing such a claim on August 24, 2000.  
In fact, the evidence of record suggests the contrary.
Ms. Harriet Smith testified that she knew Franklin Jones
"fairly well" and visited him throughout his residency at
Westminster Canterbury.  She recalled that when she was called
to his room to notarize the Notice of Claim on August 24,
2000, he recognized her and called her by name.  Ms. Smith
testified that when he signed the Notice of Claim he "was
alert."
Richard Jones testified that he brought the Notice of
Claim to his father on August 24, 2000 pursuant to his
father's request.  Franklin recognized Richard and "appeared
glad" to see him.  Richard told his father about the Notice of
Claim and told him that his signature would have to be
notarized if he chose to sign the document.  Richard testified
that his father read the Notice of Claim before signing it.  
Richard also testified that his father raised the subject of
the elective share some years before and that Richard had
assisted his father in getting the answers to some questions
regarding the elective share.
Based on the record before us, we conclude that the
Executor failed to satisfy his burden of establishing that on
August 24, 2000, Franklin Jones did not have the mental
capacity to understand his right to elect against the will and
take a share of the estate as prescribed by statute or to
understand that he was executing such an election when he
signed the Notice of Claim on August 24, 2000.  Accordingly,
we will reverse the judgment of the trial court and remand the
case for further proceedings.
Reversed and remanded.
 A party is competent to execute a deed or contract if at
the time of execution, the party has sufficient mental
capacity to understand the nature of the transaction and agree
to its provisions.  Hill v. Brooks, 253 Va. 168, 175, 482
S.E.2d 816, 821 (1997).
 A party is competent to execute a will if the party has
sufficient mental capacity at the time of execution to
"recollect[] his property, the natural objects of his bounty,
and their claims upon him, and kn[o]w the business about which
he was engaged and how he wished to dispose of his property."  
Fields v. Fields, 255 Va. 546, 550, 499 S.E.2d 826, 828
(1998).

 Dr. Bahrani testified that he did not think Franklin
Jones was competent to execute a contract, to buy a car, or
purchase a house.  However, on cross-examination he explained
that the complexity of matters associated with buying a house
such as finances and insurance would be difficult for someone
"just in the hospital" to undertake, although many people at
the end of life can make decisions "in the last minute" and he
did not know "about Mr. Jones in this case."
1

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