*1 S.E.2d Clark W. PAJAK and William J.
Audrey Anthony Wayne D. PAJAK and Ann Poore.
Poore and Christina
No. 18247.
Supreme Appeals Court of
West
March
Dissenting Opinion April Filed *2 McCamin, & McCam- estate of Clark and William on one side and Jolyon W. McCamic ic, Pajak. Wheeling, Anthony for & Wm Audrey Clark on the other. Poore and Wheeling, Shrader, Poore. Kaiser, Ray H. Brann A. Boos & Stamp, Byrd, Brum & for Byrd, altemeyer, Phillips, Audrey Pajak. Donald J. Harley, Wheeling, Tennant, Jr., Companion, Gardill, by fore action. Pajak, 1979 last will and testament William Christina Code, 41-1-6 his first Sr., Ultimately, circuit court were: Poore, was revoked marriage, [1975] the two because of his remar- Pajak’s intervened virtue W.Va. questions two children whether the in the be- J. and, (2) riage; pre-nuptial whether NEELY, Justice: Audrey Pajak D. between Sr., Pajak, William J. married Patricia Sr., Pajak, William J. is valid and binds in Schmidt and the two regard to her claim for a children, Anthony. The cou- Christina and Pajak’s share of Mr. es- wife’s 1954; ple were in the former Mrs. divorced tate. Poore, George then married who raised were his own children. Anthony, Poore never mally changed their names to Poore. Christina when legally adopted they came of Anthony Although George Christina and age they as if they for- Pajak, held that the [1975] Sr. died intestate.1 The The circuit court held that revoked the 1979 will of William J. Sr. and, therefore, pre-nuptial circuit court William J. Code, entered 41-1-6 also Sr., Pajak, again married William J. Audrey D. and William between children, and sired more Clark two Sr., binding, Pajak, was valid and J. William, by his second wife. Mr. Pa- barred claim that jak’s marriage second also ended divorce Audrey Pajak would otherwise have had on in 1980. In his divorce from before From this decision Mrs. the estate. wife, Sr., Pajak, his second William J. aside, set appealed to have testament; under wrote his last will and Jr., Pajak, J. and Clark William bequeathed all of this will he devised and of the will appealed to have the invalidation appellants, to the Clark Anthony allowed and Christina Pajak. and William argu- inherit set aside. Before Poore to Sr., Pajak, Then J. married his William, William here the issues between ment wife, day after Audrey, third one settled; Clark, Anthony and Christina were Audrey pre-nuptial entered into a he and us, then, Pajak’s ap- only that leaves Audrey agreement by which waived consequences seeking peal to avoid estate. J. and all interests William pre-nuptial contract. December, Pajak, died in 1985 and probate. 1979 will was offered for I. William, This case arose when Clark and agreement entered into by his second mar- children entirety, Mr. and Mrs. its riage, brought declaratory judgment ac- between provides as follows: respective rights tion to declare the ' W.Va.Code, be revoked which, though sion therein for such contingency, pointed when the appointment, when the estate ment, default of such sentative, Every divorce, pass to his or her would will made or next of kin: estate 41-1-6 except is made in his or her not, appointment, thereby appointed a will which making provision for such [1975] in default of such a man or woman contingency, or a will exercise of a heirs, marriage, provides Provided, personal repre- pass makes thereby ap- annulment as follows: would, to his or that even power appoint- provi- shall voked power is between her kin, person cise of such nulment or divorce. appointment was terminated (b) by person appointed in heirs, such will (a) exercising to the such annulment personal representative, appointment power such shall, nevertheless, person appointed person exercising such marriage power appointment is the if such exercise of such divorce, person appointment, by such an- in the exer- such not or next marriage and the whose unless power be re- Will; party of the party’s first that said between WIL- AGREEMENT THIS PAJAK, part, first and relin- part expressly waives LIAM J. HENNEN, dower, homestead, DARLENE quishes and AUDREY all claims to day of part, this 20th party of the second right available to a statutory or other *3 August, 1982. widow, personal and in and to the real party part of the first estate of which the
WITNESSETH: may possessed. and WHEREAS, contemplate die seised parties said marriage relation with entering into the (4) by IT MUTUALLYDECLARED IS other; and each be, parties it is their inten- said and WHEREAS, of both it is the intention tion, solely by virtue party, that neither marriage shall parties hereto that their marriage, acquire have or of said shall right of any way change legal the not in claim, statutory or any right, or title in grandchildren either of the or children other, or personal in to the real and they are be- parties’ property from what other, the same effect estate of the marriage; and fore the though place had taken as WHEREAS, recognize, ac- parties both agreement; parties this between the party the of the cept understand that and shall and that the estate of each descend love, brings affection and part first respective in his or her heirs- to and vest party worldly goods, the second and devisees, at-law, ex- legatees, or other affection, mar- brings love to the and provided by cepting may as otherwise be other; riage and to each her and Testament. and his or last Will IS, THEREFORE, AGREED IT NOW (5) FURTHER MUTUALLY IT IS mar- and consideration of the that for that, par- either of AGREED case the riage to be consummated between about sell con- mortgage, ties desire to or and hereto, parties hereto parties the both separate or vey personal his her real or agree: mutually estate, any, join each deed if will the (1) part party That the of the first will note, deed and or conveyance, of trust par- provide a home for the and maintain other, may necessary to be make Arlington ty part at 21 of the second purely event same effectual. Drive, Place, Wheeling, West Howard involving corporate business transaction elsewhere, par- Virginia, and/or as the business, or individually-owned or real agree; may ties personal property, requires signature party part, of the first That consummate, agrees each of both to then of the party he survives event thereto, signature affix his or her any part, will make no second claim without more. estate, her part party’s said second (6) IT AGREED that IS FURTHER husband, surviving which other than that each entered bequeathed him in said second may be part full on party with the will; party of the first party’s that the probable of each as to the extent and relinquishes right part and all waives estate other and of all value of the other, dower, any in and rights upon conferred law each party any real estate of which the said of the other virtue of estate seised, part may die the second desire, marriage. proposed It is their solely personal owned all her intent, agree, they hereby in consid- husband; estate, surviving as her marriage, that their re- eration of their part of the party That the second each spective rights and to other’s sur- similarly agrees, in the event she shall, by law in lieu estate as determined will party part, of the first vives the thereof, by this be determined and fixed any part or share of the make no claim to is, be, binding agreement, and shall party personal real or estate which legal respective and their them part, seised, than first dies other heirs, assigns. successors and may bequeathed her in said that as been, being, having is fur- premises, In view of the the husband or parties other; agreed both excepting ther between of the that either wife hereto as follows: hereto, parties pro- of the as hereinabove vided, Will,
(A)
cogni-
may, by
parties
are
valid
hereafter de-
hereto
par-
bequeath
clearly
zant
business interests
termine to and does
part;
ty
the first
that each of said
or her
and interests to his wife
more,
other,
parties
join
husband,
will
without
parties
hereto.
every
in each and
kind or
contract
WHEREOF,
IN WITNESS
signa-
may require
both
nature
signatures
hereto have affixed their
on
consummate;
tures to
year
day and
set
first hereinabove
part recognizes
par-
first
that the
Wheeling,
*4
forth at
West
open
ty is
about
another branch
The
evidence indicates that before
fi-
Furniture
that whatever
Carolina
and
Audrey,
Pajak,
J.
William
made,
arrangements
nancial
need be
that
was a man of
wealth who had
considerable
join
party
part
will
variety of active
Au-
business interests.
required.
promptly
them as and when
drey Pajak,
marriage,
as
before her
worked
(B)
parties
in 21
The
will reside
hereto
employee
Compa-
Carolina Furniture
Drive,
Place,
Arlington
Wheel-
Howard
ny, a retail furniture
Mr.
business which
Virginia,
elsewhere,
they
ing,
West
Pajak
pre-nuptial
was the sole
The
owner.
may determine from
to time. The
time
at issue
this case was drafted
property and its
now stand
contents
by
Pajak
lawyer
William J.
Sr.’s
and was
part.
party
the name of the
of the first
presented
Pajak
lawyer’s
to Mrs.
agreed
It is understood and
and be-
day
mar-
office one
before the
were
parties
this real
tween
hereto that
lawyer
ried. Mrs.
testified that the
estate,
contents,
and its
unless earlier
briefly,
discussed
with her
transferred,
dis-
sold or otherwise
will be
signed
reading
and that then she
it without
posed
provided
of as
the Will
agreement.
that
Mrs.
testified
party
part
of the first
in existence at the
not know
could have had
she did
that she
time of his death.
lawyer,
reviewed
another
(C)
parties
Both
heretofore exe-
have
signed
the time
and that at
she
separate
respective
personal
cuted their
ment, she believed
she “wasn’t al-
agree
parties
hereto
that:
Wills.
wording of the
object”
lowed to
to the
right to
Either
reserves the
agreement.
present
the terms of
or her
Will
alter
time,
any
and
time to time.
Pajak argued in
circuit court
(2) That neither
the Will of
will
argues
appeal
on
that at the time
contest
and now
to his or
the other nor make
claim
she
signed
pre-nuptial agreement
she
whatsoever,
provid-
except
her estate
the extent
was not
informed of
in said Wills
in accordance with
ed
and
Sr.’s,
She also
William J.
wealth.
Agreement.
understand or
maintains that
did not
hereto,
(D)
parties
Both said
consid-
meaning of
and claus-
the words
know
premises, agree
to disclaim
eration
pre-nuptial agreement.
We
es used
release,
hereby
disclaim and
do
however,
conclude,
behalf,
other,
to the
on his or
release
willingly and
agreement was entered into
her, heirs,
representa-
legal
his and/or
Audrey Pajak is
intelligently, and that
devisees, all
tives, assigns, legatees and
Accordingly, we af-
by its terms.
bound
or other
singular, every statutory
firm the circuit court.
actual,
estate,
inchoate
right, claim and
contingent,
every
kind and charac-
II.
hold,
ter,
either
would or
might
Initially,
point
we would
out
held,
in,
acquire
could have
to or
pre-
other,
us
a traditional
case before
involves
all or
of said
protect agreement designed to
nuptial
marriage, solely
virtue of said
Pajak generally was accorded all of the
rights
children from claims
inheritance
privileges
regarded
wife who is not the chil-
of a well
rights
made
a new
recently pointed out
mother. As we
unlikely
dren’s
It
that Mr.
would
wife.
is
Gant, 174
v.
W.Va.
in footnote
Gant
had he not been
have married
(1985):
740,
joint
family
efforts accumulates
assets.
agreement
she could not understand the
dies,
then,
surviving spouse
spouse
one
opportunity
and was not accorded an
may
duty
spouse
the deceased
feel a
by independent counsel.
have it examined
protect
as to the children to
the assets
well
sylla
problem
We addressed this exact
Thus,
spouse.
from claims of
second
Gant,
point
supra,
where
bus
Gant v.
ability
to enter into enforce-
without
we said:
able, pre-nuptial agreements
protect
validity
pre-nuptial agreement
of a
entitlement of a
assets from
money
dependent upon
procurement,
its
spouse,
person
an older
with
valid
help
spouse
acquired
requires
having
with the
of his or her
its
executed
been
marriage
voluntarily,
in an earlier
would be reluctant
its con-
remarry. Although
effect,
in the case before
legal
tent and
under circum-
divorced,
us Mr.
was
it was obvious
fraud, duress, misrep-
free of
stances
protect the interests of
that he wished to
resentation; however, although
advice
his children.
parties
independent counsel at the time
pre-nuptial agreement helps
enter into a
Indeed,
it is unfortunate for Mrs.
demonstrate that
there has been
that William J.
died so soon
fraud,
misrepresentation, and
duress or
couple were married. None-
after
agreement was entered
theless,
during the
the evidence is that
in-
knowledgeably
voluntarily, such
house,
marriage
good
Mrs.
lived in a
pre-
dependent advice of counsel is not
provided by
Pajak;
Pajak’s
son
enforceability when the
requisite to
marriage
to live in
a former
was welcomed
are understanda-
terms
couple;
house with the
and,
reasonably intelligent adult and
automobile;
to a
given a
ble
new Lincoln
both
the opportunity
have had
roll there before we were
I
married.
independent
consult with
counsel.
things
no idea what these
were worth.
appears
It
from Mrs.
own testi- Certainly, Audrey has not sustained her
mony that she made no effort even to read
proof
burden
and demonstrated that
in order to understand as
a fraudulent concealment of
she
assets
could,
much of
nor did she ask to
induced to enter into the
have the
examined
her own ment.
lawyer. We believe that the terms of this
person seeking
A
to overcome the
agreement comport
requirement
with the
presumptive validity
pre-nuptial agree
of a
syllabus point
Gant,
supra,
of Gant v.
designed
ment
protect
assets for the
in that “the
terms of the
are
previous
children of
has a
reasonably intelligent
to a
understandable
heavy
proof.
burden of
adult....”
Gant,
As we said in
supra:
Gant v.
Remke,
In Gieseler v.
crafting
In
rules
an area such as the
S.E. 847
we held:
prenuptial
enforcement
agreements
antenuptial agreements
a confiden-
only
thing
one
is certain: no matter what
tial
exists between the con-
adopt,
rules we
there will be cases when
tracting parties
duty
and it is the
application
of those rules will be in-
prospective husband to fully disclose the
Therefore,
equitable.
question
to be
amount of his
fairly
and to deal
asked is
adoption
whether the
of firm
with his
bride
to honest-
making prenuptial agreements
rules
pre-
ly carry
provisions
out the
of the con-
sumptively
stated,
enforceable in their
tract.
[Citations omitted]
explicit terms will advance or undermine
*6
432,
However,
117
at
W.Va.
testified with
to Mr.
assets:
I
today’s opinion
sig-
trust that
I assumed he
the house on Ar-
does not
owned
nal
lington
position,
a retreat
from this Court’s
Drive and he owned the Lincoln
so, requir-
I
evolved over the
automobile because he let me drive it.
last decade or
ing
thought
just
he owned
Furniture
fair and
treatment
for married
Carolina
Company
put
pay-
because he
me on the
women.1 It will be cold comfort to Mrs.
See,
J.B.,
Molnar,
e.g., Kathy
military pension);
L.B.
W.Va.
band’s
v. Patrick
179
Molnar v.
173
655,
(mother’s
200,
(1984) (wife’s
right
right
S.E.2d
to W.Va.
S.E.2d
371
583
314
73
to
Prather,
alimony);
expenses
support
birth
father):
and child
from natural
rehabilitative
Prather v.
172
804,
348,
Weller,
(1983) (power
In Re Estate
W.Va.
W.Va.
liam J.
evidence
32,
at
married.”
W.Va.
were
in advance
try
than
the case
verdict rather
truly
is
unfortu-
S.E.2d at 388. What
summary judgment.”
on a
for
motion
twisting of the law to
majority’s
nate is the
majority’s
I must also take issue
her
share
deprive Mrs.
on the statement
footnote
reliance
estate.
husband’s
740,
Gant, 174
329 S.E.2d
Gant v.
pointed
it should be
out that
Initially,
(1985),
strongly
always
“[w]e
by way
summary
of a
this case was decided
estab
prenuptial agreements that
favored
majority completely ig-
judgment. The
Virgi
rights at
in West
lish
death
law
nores this fact and our well-established
745,
nia.”
329 S.E.2d
174 W.Va. at
summary judgment except
that forecloses
original.)
(Emphasis
Looking
genuine
it is clear that there is no
“when
Gant,
support
I find no
cases cited
inquiry
tried and
con-
issue of fact
Certainly,
this statement.
Gieseler v.
clarify
facts
cerning the
is not desirable
Remke,
430,
(1936),
117 W.Va.
S.E.
Point
application
the law.”
not,
there refused to
does
Court
Surety
part, Aetna Cas. &
Co.
antenuptial agreement.
uphold
Wil
York, 148 W.Va.
Federal Ins. Co. New
v. First Nat’l Bank William
liamson
(1963).2
reluc-
By avoiding any discussion of the sum-
promised
assert
issue,
husband
mary
judgment
majority
able
*7
separate property.
his
against
claim
wife’s
supply
simply
to
critical facts that
do not
agreement
least,
This
held that the
was
Court
very
exist
At the
this
in the record.3
specific enough
right
off his
not
to cut
case
reversed and re-
should have been
Bramer,
curtesy.
Syllabus
3
Syllabus
1
Point
trial under
Point of
manded for
Co.,
any
inter-
supra:
rejecting
if
a rule
“Even
we evolved
broad
Masinter v. WEBCO
(1)
services);
Pajak]
McCoy,
was obvious that
wished
[Mr.
Garska v.
167 W.Va.
"[I]t
maker
59,
protect
(1981)
to
the interests of his children.” 182
(primary caretaker
Code, The no 42-3-1. agree- “Antenuptial settlements and Pajak except that her for Mrs. provision governed principle that ments are the claim an interest would not husband engagement marry gives rise to a an assets, valued between pro- the confidential between $6,000 $8,000. spective spouses. They cannot with re- agreement spect to such a settlement or analysis Turning to an Gant regarded category be the same factors, is that this is clear ordinary persons buyers and sellers or is testimony The that while Mrs. void. length. dealing each other at arm’s with did signed agreement, she so each frank duty It is the to be explanation from her without relevant in the disclosure of all cir- unreserved giving attorney of what she was husband’s bearing on cumstances the settlement or that she had no advance up. fact agreement. Overreaching, or abuse of warning until pro- relation confidential between attorney’s office the to her husband’s taken antenuptial spective spouses, an wedding makes undercuts a claim day before the Furthermore, voidable. Such settlement of voluntariness. agreement, nothing ante- to be enforce- absolutely under the settlement received able, fair, equitable, agreement. As in 41 and reason- nuptial stated Am. must be (1968), surrounding facts able view of the Husband and Jur.2d §Wife It provision for the wife circumstances. must also be entered adequacy voluntarily, at least agreement: with full or fair the fairness bears facts, “However, provision adequate knowledge for adequacy good part and in utmost faith on the is to considered connection the wife (Footnotes omitted). both.” question whether the contract is with fair, may inadequacy give rise foregoing If we with the combine vitiating the presumption of fraud not advised nor fact (Footnotes omitted). Annot., ment.” See given opportunity with her consult A.L.R.2d 883 lawyer agreement, the total own about
Moreover, more A apparent. unfairness is even num- it seems axiomatic fact agreement’s patterns con- of cases involve substan- knowledge of the ber have case, i.e., tents, requires, tially must be similar to this lack disclo- as Gant there assets, inadequate the hus- sure of consideration to reasonable disclosure of some wife, request showing that the and a sudden assets or at least band’s time independent with no for the wife talk prospective wife had some attorney. facts. Neither condi- to an Courts confronted of these difficulty pattern fact case. com- this tion exists Gieseler’s voiding antenuptial duty agreement. E.g., that “it mand *9 proper- condition” and “there was no fraud conceal- These assets included several rental 6. $30,000 ties, generated approximately inducing ment that had the effect parcels year, each several un- charged entering rental income agreement that oth- $130,000. land, developed and a home valued at erwise would not have been made?” two holdings real estate were val- entire self-defeating. concepts are Concealment $500,000. approximately He also ued technique practiced most common deposit and certificates of worth bank accounts approximately wealthy prospective marriage partner. There is $56,000. fear that desire to disclose assets for forego spouse all claims will not want to other majority opinion I find Point it. unintelligible. is meant to be almost What general party’s other "a idea of the financial
37 (Fla. 338 Lutgert Lutgert, So.2d 1111
App.1976), appeal remand, 362 So.2d after denied, (Fla.App.1978), 58 367 So.2d cert. Britven, (Fla.1979);
1125 Britven v. 259 650, 145 (1966); 450
Iowa N.W.2d Estate of 681,
Benker, 416 Mich. 331 193 N.W.2d
(1982); Zimmie, Zimmie v. 11 St.3d Ohio 396, (1984); B.R. 464 Ohio N.E.2d 142 Norris, Marriage Or.App.
Re denied, P.2d review Or.
P.2d Crawford, Re Estate of (1986). P.2d Wash.2d See Annot.,
generally
I opinion does befriend widow who believes that
justice husband, requires Gieseler,
the words of “to disclose the fairly
amount and to deal prospective bride.”
with his 117 W.Va. at
432,
For I these dissent.
Gerald CHURCH
V.R. WESSON.
No. 18486.
Supreme Appeals Court
of West
June