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ESTATE OF AUDREY JANE PARFITT, BY
JANICE PARFITT CAUSEY, ADMINISTRATOR, CTA
Record No. 081100
OPINION BY JUSTICE DONALD W. LEMONS
February 27, 2009
JEFFREY E. PARFITT, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Jr., Judge
In this appeal, we consider whether the trial court erred
in dismissing a complaint filed by the administrator of the
Estate of Audrey Jane Parfitt (“Estate”) against the
decedent’s son, Jeffrey E. Parfitt, and his wife, Boyka S.
Facts and Proceedings Below
Before her 2004 cancer diagnosis, Audrey Jane Parfitt
(known as “Jane”) executed a will leaving her entire estate in
equal shares to her children and stepchildren.
final illness, Jane required considerable physical assistance
to complete even the most basic daily tasks.
time, she received help from hired caregivers, as well as from
her son, Jeffrey E. Parfitt (“Jeff”), and his wife, Boyka S.
With the knowledge and assent of his brother Gordon Vance
Parfitt (“Vance”), who lived out of state, Jeff was added as a
joint owner of Jane’s bank account (“joint account”) in order
to assist Jane in paying her bills.
Jane, Jeff, and Vance
also agreed that Jeff would quit his construction job to care
for Jane until care providers could be hired, and that Jeff
would pay himself $500.00 per week from the joint account to
make up for his lost income.
Although care providers were
hired in July 2004, Jeff did not return to work until after
Jane’s death in March 2006.
During this period, Jeff liquidated a number of Jane’s
assets and obtained various loans, depositing the proceeds
into the joint account.
The sources of funds used in these
transactions included an annuity from New York Life
surrendered for $106,093.05, a certificate of deposit from
BB&T Bank worth $14,675.66, a home equity loan also from BB&T
Bank in the amount of $50,000, a certificate of deposit from
USAA Federal Savings Bank worth $12,811.41, and a reverse
mortgage obtained from Seattle Mortgage Company in the amount
The total value of assets deposited in the joint
account as a result of these transactions was at least
During the period of Jane’s illness, Jeff transferred
$305,591.00 from the joint account to an account he shared with
Jeff also wrote checks to himself from the joint
account totaling $67,500.
Additionally, Jeff wrote checks from
the joint account to various payees in the amount of $9,013.37
for his and Boyka’s benefit.
Jane died on March 7, 2006.
In July 2006, the Estate
filed a complaint against Jeff, alleging breach of fiduciary
duty, conversion, unjust enrichment, and including a claim in
Boyka was added as a defendant on the same claims in
a November 2006 amended complaint.
After a three-day bench trial, the trial court entered an
order holding that (i) the Estate had failed to establish the
existence of undue influence; (ii) the evidence had not
established a confidential relationship between Jeff and Jane;
and, (iii) the Estate had failed to prove a claim in detinue,
for conversion, or for unjust enrichment.
We awarded an appeal
to the Estate on the following assignments of error:
The court made an error of fact in determining that
Plaintiff did not demonstrate that Jane Parfitt’s
free agency was destroyed.
The court made an error of law in determining that
Plaintiff did not demonstrate a confidential
relationship existed between Jeffrey Parfitt and
The court made an error of law in determining that
Plaintiff did not demonstrate a prima facie claim of
undue influence, thereby shifting the burden of
proof to the Defendants.
The court made an error of law in determining that
Plaintiff did not prove a claim of conversion or
The court made an error of fact and law in not
determining that Defendants’ testimony should be
struck for lack of corroboration pursuant to
Virginia Code § 8.01-397.
The court made an error of law in not finding that
Jeffrey Parfitt breached his fiduciary duty to Jane
Standard of Review
In dismissing the Estate’s claims, the trial court
rejected the Estate’s contention that it had introduced
sufficient evidence to establish, as a matter of law, a prima
facie case of undue influence.
Whether a plaintiff alleging
undue influence has established a prima facie case is reviewed
de novo, see Virginia Baptist Homes, Inc. v. Botetourt County,
276 Va. 656, 663, 668 S.E.2d 119, 122 (2008); Quatannens v.
Tyrrell, 268 Va. 360, 365, 601 S.E.2d 616, 618 (2004), with
deference given to the factual findings of the trial court,
see Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33, 597
S.E.2d 34, 39 (2004).
Personal Benefit and Confidential Relationship
We recently reiterated the law of undue influence in
A court of equity will not set aside a
contract because it is “rash, improvident or
[a] hard bargain” but equity will act if the
circumstances raise the inference that the
contract was the result of imposition,
deception, or undue influence. To set aside a
deed or contract on the basis of undue
influence requires a showing that the free
agency of the contracting party has been
destroyed. Because undue influence is a
species of fraud, the person seeking to set
aside the contract must prove undue influence
by clear and convincing evidence.
Direct proof of undue influence is often
difficult to produce. In the seminal case of
Fishburne v. Ferguson, 84 Va. 87, 111, 4 S.E.
575, 582 (1887), however this Court identified
two situations which we considered sufficient
to show that a contracting party’s free agency
was destroyed, and, once established, shift the
burden of production to the proponent of the
contract. The first involved the mental state
of the contracting party and the amount of
[W]here great weakness of mind
concurs with gross inadequacy of
consideration, or circumstances of
suspicion, the transaction will be
presumed to have been brought about
by undue influence.
. . . .
The second instance Fishburne
identified arises when a confidential
relationship exists between the grantor
and proponent of the instrument:
[W]here one person stands in a
relationship of special confidence
towards another, so as to acquire an
habitual influence over him, he
cannot accept from such person a
personal benefit without exposing
himself to the risk, in a degree
proportioned to the nature of their
connection, of having it set aside as
Bailey v. Turnbow, 273 Va. 262, 267, 639 S.E.2d 291, 293
(2007) (quoting Friendly Ice Cream Corp., 268 Va. at 31-32,
597 S.E.2d at 38-39 (internal citations omitted)).
presumption of undue influence arises and the burden of going
forward with the evidence shifts when weakness of mind and
grossly inadequate consideration or suspicious circumstances
are shown or when a confidential relationship is established.”
Friendly Ice Cream Corp.
268 Va. at 33, 597 S.E.2d at 39
(emphases in original).
This presumption will satisfy the
plaintiff’s burden of proving undue influence unless it is
The defendant therefore has the burden of producing
evidence sufficient to rebut the presumption.
These principles apply to gratuitous transfers as well as
The Estate contends it demonstrated, by clear and
convincing evidence, that both situations described in
Fishburne were present here and that, under either analysis,
the trial court should have shifted to Jeff and Boyka the
burden of producing evidence sufficient to rebut the
presumption of undue influence.
However, in this case we need
not decide the issue of Jane’s weakness of mind, because a
confidential relationship was established as a matter of law
by Jeff’s joint ownership of the bank account through which
all the assets at issue flowed.
First, it is undisputed that by virtue of their actions
with regard to Jane’s property, Jeff and Boyka received
considerable personal benefit.
This is a necessary
precondition for the burden to be shifted when a transaction
is challenged on the ground that it was procured by undue
influence in a confidential relationship.
Friendly Ice Cream
Corp., 268 Va. at 31-32, 597 S.E.2d at 38-39.
We next turn to whether a confidential relationship was
We discussed the general outline of such
relationships in Friendly Ice Cream Corp., which described a
confidential relationship as
not confined to any specific association of the
parties; it is one wherein a party is bound to
act for the benefit of another, and can take no
advantage to himself. It appears when the
circumstances make it certain the parties do
not deal on equal terms, but, on the one side,
there is an overmastering influence, or, on the
other, weakness, dependence, or trust,
justifiably reposed; in both an unfair
advantage is possible.
Trust alone, however, is not sufficient. We
trust most men with whom we deal. There must
be something reciprocal in the relationship
before the rule can be invoked. Before
liability can be fastened upon one there must
have been something in the course of dealings
for which he was in part responsible that
induced another to lean upon him, and from
which it can be inferred that the ordinary
right to contract had been surrendered.
Friendly Ice Cream Corp., 268 Va. at 33-34, 597 S.E.2d at 3940 (quoting Hancock v. Anderson, 160 Va. 225, 240-41, 168 S.E.
458, 463 (1933) (citation omitted)).
We have identified
several particular classes of relationships that may give rise
to a presumption of undue influence.
Among them, and most
relevant in this appeal, is when one person is an agent for
Bailey, 273 Va. at 268, 639 S.E.2d at 293.
In this case, Jeff was an agent for Jane by statute, as a
joint owner of an account to which he had not contributed.
Code § 6.1-125.15:1 provides that “[p]arties to a joint
account in a financial institution occupy the relation of
principal and agent as to each other, with each standing as a
principal in regard to his ownership interest in the joint
account and as agent in regard to the ownership interest of
the other party.” (Emphasis added).
The transfers challenged
in this case passed through an account that Jane and Jeff held
as joint owners with right of survivorship.
The evidence at
trial indicated that the proceeds from the New York Life
annuity and the Certificates of Deposit from BB&T and USAA
were deposited into the joint account.
from the home equity line of credit Jane obtained from BB&T
were also deposited to the joint account as a “counter
Likewise, $155,000 obtained under the reverse
mortgage was deposited into the joint account.
all belonged to Jane.
Because Jeff did not contribute any funds to Jane’s
account, he was, by operation of statute, an agent with regard
to the entire account.
By statute, a confidential
relationship was established creating a fiduciary duty.
§ 6.1-125.15:1; Horne v. Holley, 167 Va. 234, 241, 188 S.E.
169, 172 (1936) (“[A]n agent is a fiduciary with respect to
the matters within the scope of his agency”).
confidential relationship created a presumption that the selfdealing transactions were “unduly obtained.”
Va. at 113, 4 S.E. at 582.
Accordingly, the trial court erred
in holding that there was no confidential relationship, and
therefore erred in failing to shift the burden of production
to Jeff and Boyka to rebut the presumption of undue influence
in the various transactions.
Dead Man’s Statute
The Estate also argues that the entire trial testimony of
Jeff and Boyka should have been stricken in accordance with
Code § 8.01-397, Virginia’s “dead man’s statute,” and that the
trial court’s failure to do so constituted reversible error.
In this case, the dead man’s statute requires corroboration of
testimony of an adverse or interested party in an action
concerning the decedent’s estate.
Standard of Review
“Whether or not corroboration exists and the degree and
quality required are to be determined by the facts and
circumstances of the particular case.”
Nicholson v. Shockey,
192 Va. 270, 283, 64 S.E.2d 813, 821 (1951).
However, if the
trial court failed to identify the correct legal standard in
determining the level of corroboration required, then it is an
issue of law that, like other issues of law, must be reviewed
Level of Corroboration Required
The statute relied on by the Estate reads in relevant
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, no
judgment or decree shall be rendered in favor
of an adverse or interested party founded on
his uncorroborated testimony.
Code § 8.01-397.
We have often been called on to apply the
statute, and have made it clear that
[i]t is not necessary that the corroborative
evidence should of itself be sufficient to
support a verdict, for then there would be no
need for the adverse or interested party’s
testimony to be corroborated. Corroborating
evidence tends to confirm and strengthen the
testimony of the witness[,] and it may come
from other witnesses as well as from
circumstantial evidence. It is not essential
that a survivor’s testimony be corroborated on
all material points.
The corroboration, to be sufficient under
the statute, however, must at least tend, in
some degree, of its own strength and
independently, to support some essential
allegation or issue raised by the pleadings
[and] testified to by the [surviving] witness
. . . which allegation or issue, if
unsupported, would be fatal to the case.
Rice v. Charles, 260 Va. 157, 165-66, 532 S.E.2d 318, 323
(2000) (citations, emphases by the Court, and internal
quotation marks omitted).
Additionally, “[w]here a
confidential relationship existed between the parties at the
time of the transaction relied on, a higher degree of
corroboration is required than in ordinary transactions.”
Clay v. Clay, 196 Va. 997, 1002, 86 S.E.2d 812, 815 (1955)
(citing Nicholson, 192 Va. at 283, 64 S.E.2d at 821).
Here, the trial court denied the Estate’s motion to
strike Jeff and Boyka’s testimony based on the dead man’s
In doing so, the trial court found that Jeff and
Boyka’s testimony was sufficiently corroborated by the
defendants’ witnesses and by the Estate’s own “exhibits and
However, given the trial court’s
erroneous holding that no confidential relationship existed,
we must conclude that the trial court did not apply the
“higher degree of corroboration” as it was required to do.
Conversion or Unjust Enrichment
Finally, the Estate also contends the trial court erred
in holding that it failed to prove either conversion or unjust
enrichment by Jeff and Boyka.
However, the Estate failed to
address either issue in its brief, and consequently has waived
the argument on appeal.
Rule 5:27, titled “Opening Brief of Appellant,” requires
that “[t]he form and contents of the opening brief of
appellant shall conform in all respects to the requirements
. . . set forth in Rule 5:17(c)”).
Rule 5:17(c), in turn,
instructs that with respect to any assignments of error in the
petition for appeal, the appellant shall include “[t]he
principles of law, the argument, and the authorities relating
to each assignment of error.”
therefore requires that the same elements be included in the
opening brief for each granted assignment of error.
failure to comply with the requirements of Rules 5:27 and
5:17(c)(4) results in waiver of the arguments the party failed
Jay v. Commonwealth, 275 Va. 510, 519, 659 S.E.2d
311, 316 (2008).
The Estate has violated Rule 5:27 by failing
to include any “principles of law,” “argument,” or
“authorities” relating to this granted assignment of error.
Consequently, the Estate has waived these arguments on appeal.
The trial court erred in holding that a confidential
relationship did not exist with respect to transactions
involving the joint bank account.
Flowing from this error,
the trial court then erred in application of evidentiary
burdens regarding proof of undue influence and corroboration
necessary under the dead man’s statute.
Accordingly, we will
reverse the judgment of the trial court and remand the matter
for a new trial consistent with this opinion.
At a new trial
of this matter, the Estate is not precluded from offering
proof of undue influence on any basis including the
confidential relationship created by application of Code
However, the failure to argue claims of
conversion and unjust enrichment on appeal will preclude the
Estate from presenting those claims upon retrial.
Reversed and remanded.