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Abstract

In Rust v. Reid, a 1918 case involving testamentary capacity, the Supreme Court of Virginia wrote the "cases upon this subject are almost without number, and they are not to be reconciled," but Rust referred to "all of the decisions of this court on the subject of competency of jurors," which also had been at issue in the case. However, in its decision in Rust, the Court easily could have leveled the same self-criticism about its cases deciding (1) which party bears the burden of proof in testamentary capacity litigation; (2) whether a presumption of testamentary capacity exists; and (3) whether the jury is instructed about that presumption. Today, after a series of three cases decided in the last four years, those cases remain irreconcilable. The burden of proof in testamentary capacity litigation has been "reversed" at least eleven times in the history of Commonwealth. However, those "reversals" occurred only in the colloquial, and not the legal, sense. The Supreme Court of Virginia has never expressly reversed any of its decisions, nor, with one exception in 1908,' has the court even admitted that a conflict exists. Kiddell v. Labowitz (2012), the most recent case, discovered a jury instruction from Huff v. Welch (1913), which had not been the subject of an appellate opinion for over sixty years, yet about which, according to Kiddell, "[flor the next hundred years, the Court [had] addressed and approved the exact same instruction or a close variant." Under the Kiddell instructions (which make an important and inadequately explained change to the Huff instruction), even though the proponent of a will ostensibly bears the burden to prove testamentary capacity, the will's opponent must present " [e]vidence that is sufficient to satisfy an unprejudiced mind seeking the truth"' "to overcome the presumption of testamentary capacity." Contrary to the express statement in Kiddell about a hundred-year consistency between Huff (1913) and Kiddell (2012), during that almost one hundred years fourteen cases flatly inconsistent with Huff were decided, including (1) three cases that placed the burden of proof upon the proponents without mention of the presumption at all, (2) seven cases that placed the burden of proof upon the proponents, said that the presumption existed, but indicated that the presumption was of the common variety and not told to the jury, and (3) four cases that placed the burden of proof upon the opponents, thus obviating any need for an evidentiary presumption in favor of the proponents. Just before Huff was decided (1913), the Wallen (1907) decision had provided another "hundred-year" canard. Wallen v. Wallen concluded that the presumption of testamentary capacity shifted the burden of proof to the opponent and cited Temple v. Temple (1807) as "a case decided just one hundred years ago and never since questioned." Although Wallen and Temple were consistent, during the one hundred years between them, five cases had placed the burden on the proponent without benefit of any presumption, and three of them had required proof by clear and convincing evidence, yet Wallen mentioned none of them. Consequently, neither the hundred year consistency claimed by Kiddell (2012) about Huff s 1913 rule on instructing juries about the presumption of testamentary capacity, nor the hundred year consistency claimed by Wallen (1907) about Temple's (1807) rule that the opponent bears the burden of proof on testamentary capacity actually existed. Moreover, the irreconcilable cases did not vanish after those declarations of hundred-year rules. After Wallen (1907) and Huff (1913), the burden-of-proof and effect-of-presumption cases continued widely to vary the rules without recognition of any inconsistency. This article is both a piece of doctrinal scholarship, describing which party bears the burden in testamentary capacity litigation and whether and how a presumption of testamentary capacity operates, and a piece of historical analysis, demonstrating two disturbing practices of the Supreme Court of Virginia within those doctrines: a rather cavalier attitude in not following precedent, and a rather careless method of citing it.