Gelber v. Glock
800 S.E.2d 800
| Va. | 2017Background
- Beverly Gelber (aged 87, terminally ill) executed a deed of gift conveying her home and a bill of sale conveying personal property to daughter Meryl on July 18, 2014 while hospitalized; these transactions were later recorded.
- In 2010 Beverly had executed a revocable trust naming herself trustee and conveyed tangible personal property to herself as trustee, with a written-notice revocation mechanism.
- Beverly later made oral and written declarations disavowing the July transfers, stating she did not recall signing them, was weakened/delirious, and had been misled by Meryl; she also executed a power of attorney appointing other children.
- Beverly sued Meryl for undue influence and fraud; after Beverly’s death her children (Larry and Darlene) continued the suit as executors/trustees.
- At trial the circuit court excluded Beverly’s post-transaction declarations, excluded county real-estate tax assessment records as hearsay/expert-opinion, struck the Executors’ evidence on undue influence and promissory-fraud claims and entered judgment for Meryl (including attorney’s fees); the executors appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of bill of sale transferring personal property given trust conveyance | Bill of sale signed in Beverly’s individual capacity failed to revoke the trust transfer as a matter of law | Beverly, as settlor and sole trustee, could revoke/withdraw by signed writing to herself; bill of sale substantially complied | Affirmed: trial court properly denied partial summary judgment; bill of sale could transfer title because settlor/trustee could revoke by her signed instrument |
| Admissibility of Beverly’s out-of-court declarations (post-execution) under Dead Man’s statute (Code § 8.01-397) | Declarations admissible as hearsay exception for declarations of party incapable of testifying | Declarations inadmissible under Wallen precedent; not contemporaneous with execution/res gestae | Reversed: declarations relevant and admissible under § 8.01-397; exclusion was abuse of discretion |
| Admission of county real-estate tax assessment records to prove property value | Tax records are public records admissible under the public-records exception | Records are hearsay and contain expert opinion on value (inadmissible without sponsoring/founding an expert) | Affirmed: exclusion proper because records contained inadmissible hearsay expert opinion |
| Sufficiency of evidence to survive motion to strike on undue influence and promissory fraud | Evidence showed delirium/weakness, suspicious circumstances, confidential relationship, and promises to build an addition (no intent to perform) | Defendant pointed to testimony that Beverly intended to give the house and at times appeared alert; argued incapacity evidence negates undue-influence proof | Reversed in part: Executors presented sufficient evidence to raise presumption of undue influence and to support promissory-fraud claim; trial court erred in striking those claims |
| Civil conspiracy claim (against Meryl and third parties) | Co-conspirators (Linda, Philip) aided scheme; conspiracy supports rescission/damages | Civil conspiracy requires independent damages and is not the correct vehicle to seek rescission here | Affirmed: conspiracy claim properly struck because plaintiffs sought rescission without proving damages; conspiracy not proper mechanism to rescind against single defendant |
Key Cases Cited
- Murnan v. Stewart Title Guar. Co., 585 F. Supp. 2d 825 (E.D. Va.) (settlor who retains revocation power owns right to eliminate trust property)
- Austin v. City of Alexandria, 265 Va. 89 (Va. 2003) (when settlor is trustee, settlor’s signed instruments can satisfy trust’s written-notice requirement)
- Wallen v. Wallen, 107 Va. 131 (Va. 1907) (pre-Dead Man’s statute rule limiting noncontemporaneous declarations to state of mind, not substantive undue influence)
- John Crane, Inc. v. Jones, 274 Va. 581 (Va. 2007) (abuse of discretion standard for evidentiary rulings)
- Parfitt v. Parfitt, 277 Va. 333 (Va. 2009) (presumptions of undue influence from confidential relationships and joint-account doctrines)
- SuperValu, Inc. v. Johnson, 276 Va. 356 (Va. 2008) (promissory fraud theory: promise made with no intent to perform is actionable)
- McMunn v. Tatum, 237 Va. 558 (Va. 1989) (dangers of admitting hearsay expert opinion; need for cross-examination and foundational proof)
- Smith v. Woodlawn Construction Co., 235 Va. 424 (Va. 1988) (public-records exception does not admit opinions as to value contained in official records)
- Beck v. Prupis, 162 F.3d 1090 (11th Cir.) (civil conspiracy requires underlying tort and damages to extend liability)