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PRESENT: All the Justices
                                                                     LAURIE A. KIDDELL, ET AL.
                                                                                                 OPINION BY
v.                                                                   Record No.  111236          JUSTICE CLEO E. POWELL
November  1,  2012
KEN LABOWITZ, EXECUTOR OF THE
ESTATE OF LOUISE BRADFORD JUDSEN
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge Designate
In this will contest, we consider whether the circuit court
erred in instructing the jury as to the existence of the
presumption of testamentary capacity.    Appellant contends that,
under the facts of this case, the presumption disappeared, and
it was error to instruct the jury regarding the presumption.    We
conclude that the presumption does not necessarily disappear in
the face of evidence to the contrary.    Moreover, the circuit
court, in this case, did not rule, at the motion to strike, that
the presumption had been rebutted.    Therefore, the circuit court
did not err in instructing the jury about the presumption, and
we affirm the circuit court’s judgment.
I. FACTS AND PROCEEDINGS
Louise Bradford Judsen executed a will on April  19,  2010,
(“the April will”), naming her beneficiaries: Judsen’s cousin,
Laurie Kiddell  (“Laurie”); Laurie’s husband, Lee Kiddell
(“Lee”); their daughter, LeAnn Kiddell  (“LeAnn”); two other
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first cousins; and the  “American Cancer Association.”    The April
will was prepared by Laurie from an online template.
On June  15,  2010, Judsen executed another will  (“the June
will”), naming Kenneth E. Labowitz, an attorney, as the executor
of her estate.    In the June will, Judsen bequeathed her dog and
a cash gift for the dog’s care to Laurie.    Judsen bequeathed
one-third of her residuary estate to the  “Leukemia & Lymphoma
Society Inc.,” one-third to the  “American Cancer Society Inc.,”
and one-third to a  “Head Trauma Research Center” to be chosen in
the sole discretion of her executor.
Judsen died on June  18,  2010, and the June will was
admitted to probate.    Laurie and LeAnn  (hereinafter referred to
collectively as  “Kiddell”) filed a  “Complaint to Impeach Will,
Nullify Probate Order and Admit Earlier Will to Probate” against
Labowitz, the Leukemia and Lymphoma Society, Inc., and the
American Cancer Society, Inc.    In this complaint, Kiddell
alleged that Judsen lacked testamentary capacity when she
executed the June will.1    Kiddell sought to have the order
admitting the June will to probate nullified and the April will
admitted to probate.    Labowitz filed an answer denying Kiddell’s
claims.2
1 Lee was not a party to the complaint and is not a party to
this appeal.
2 The other named defendants did not respond to the
complaint.
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At a jury trial, the evidence showed that Judsen was
diagnosed with a terminal illness in February  2010.    On May  13,
2010, Judsen’s health had deteriorated and she was admitted to a
hospital.
At the request of Laurie, who lived in Illinois, Labowitz
contacted Judsen in the hospital because Laurie wanted him to
assist Judsen with her financial matters.    Specifically, Laurie
wanted Labowitz to be authorized to act under Judsen’s power of
attorney instead of Laurie.    According to Labowitz, Judsen
became  “upset” with Laurie for sending Labowitz  “to  [perform
duties under] the new power of attorney.”    Despite her anger,
Judsen executed a new power of attorney naming Labowitz as her
attorney in fact.    Labowitz testified that, during the meetings
that he had with Judsen, she was insistent on returning home,
concerned about her dog, and aware that she had only a small
amount of cash among her assets.
According to Labowitz, Judsen also told him she wanted to
execute a new will.    Consequently, Labowitz contacted Sean
Dunston, an attorney practicing primarily in the area of wills,
trusts, and estates, to assist Judsen with her new will.
Although Laurie sent the April will to Labowitz, Labowitz did
not give Dunston the April will because Labowitz had previously
filed it with the Fairfax County Circuit Court.    Labowitz did
not believe that he told Dunston about this will.
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Dunston met with Judsen at the hospital on multiple
occasions concerning the preparation of her will.    According to
Dunston, during a meeting with Judsen on June  3, she explained
that she wanted to dispose of her estate by providing for the
care of her dog and leaving the residue of her estate to three
specific charities.    On June  14, Dunston reviewed a draft will
with Judsen.    Judsen indicated that there was an error in the
paragraph stating that she was  “not unmarried.”    She advised
Dunston that she was divorced.    When Dunston asked if she wished
to include any family members as beneficiaries, Judsen answered
“no.”    However, she told Dunston that she wanted Laurie to take
care of her dog.    Dunston specifically reviewed with Judsen the
clause that bequeathed her residuary estate to three charities.
Dunston finalized Judsen’s will and returned to the
hospital on June  15 with two paralegals from his office.    After
Dunston read all the provisions of the will aloud to Judsen, she
confirmed that the will expressed her wishes, that she was of
sound and disposing mind, and that she was signing the document
freely and voluntarily.    Judsen then executed the will.    Dunston
and one of the paralegals from his office witnessed the
testator’s execution of her will, and the other paralegal served
as the notary public in accordance with the provisions of Code
§  64.1-49.    According to Dunston, there was no question in his
mind that when Judsen executed the June will, she knew her
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property and the natural objects of her bounty.    She understood
that she was executing a will and knew how she wished to dispose
of her property.    The two paralegals also confirmed that
although the testator seemed tired, she was coherent and able to
respond to Dunston’s questions.    Neither paralegal had any
concerns about the testator’s ability to execute the will.    One
of them testified that the testator  “fully underst[ood]” the
document she was executing.
Laurie testified that she and Judsen were  “very close” when
they were growing up.    Since  2005, when Judsen became involved
in Laurie’s business, they spoke several times each week.
Laurie also testified that at some point, she talked with Judsen
about drafting a will, and according to Laurie, Judsen stated
that she wished to leave her estate to Laurie, her husband and
daughter.    Nevertheless, Laurie admitted that Judsen became
angry with her when she contacted Labowitz to assist with
Judsen’s financial matters.    Laurie believed that Judsen was
being  “spiteful” when she executed the June will with terms that
were dramatically different than the terms of the April will.
James Carlton, a tenant in Judsen’s home and a witness to
the April will, testified that when he visited Judsen at the
hospital on June  14, she did not maintain eye contact with him
and responded  “yes” to every question he asked her.    Carlton did
not, however, see Judsen on the day she executed the June will.
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He also stated that Judsen had a tendency to  “get mad at anybody
who didn’t do what she wanted when she wanted.”
Dr. Abdulkadir Salhan, one of Judsen’s attending
physicians, testified that he completed a report on June  15,
2010, for the purpose of evaluating her competency.    In that
report, he opined that Judsen was  “not competent” and  “ha[d] a
disability that prevent[ed]  [her] from making or communicating
any responsible decisions concerning  [her] property.”    Dr.
Salhan, however, conceded that medical record notations dated
June  15 stated that Judsen understood  “her disease, her
diagnosis, stage, and prognosis.”    Dr. Salhan also admitted that
he did not question Judsen concerning her property, finances, or
family, and that he did not specifically assess her capacity to
execute a will.
Dr. Thomas Hyde, who testified at trial as an expert in the
field of neurology, reviewed Judsen’s medical records, treatment
plan, and medications.    He opined that Judsen’s cognitive
abilities were markedly impaired on June  15,  2010, such that she
would have been precluded from fully understanding the nature
and extent of her property, the members of her family and  “to
whom she was giving property and in what manner.”    Dr. Hyde
further opined that Judsen would have known that she was signing
a paper but would not have known what was on it.
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At the close of Kiddell’s case, Labowitz moved to strike
the evidence, arguing that Kiddell failed to overcome the
presumption of testamentary capacity by a preponderance of the
evidence.    The circuit court denied Labowitz’ motion.
At the close of all the evidence, Kiddell moved to strike
Labowitz’ evidence, arguing that the evidence was insufficient
to prove that Judsen had testamentary capacity when she executed
the June will.    The circuit court denied the motion and allowed
the case to go to the jury.
In submitting the case to the jury, the parties agreed on
two jury instructions, Instructions  5 and  6, related to this
appeal.    Jury Instruction  5 stated:
Your verdict must be based on the facts as
you find them and on the law contained in all of
these instructions.
The only question in this case is whether
this writing is the last will of Louise Judsen.
In deciding this question, you will have to
consider this issue:
(1)   Did Louise Judsen have testamentary
capacity when she signed it?
On this issue, the proponents of the will
have the burden of proof by the greater weight of
the evidence.
Your decision on this issue must be governed
by the instructions that follow.
The instruction that followed, Jury Instruction  6, stated:
You shall find the writing dated June  15,
2010 to be the last will  [of] Louise Judsen if
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the proponent proved by the greater weight of the
evidence that:
(1) Louise Judsen was capable of making a will
at the time she executed the writing.
You shall find that the writing dated June
15,  2010 was not the last will  [of] Louise Judsen
if the proponent failed to prove the element
above.
The circuit court also granted two jury instructions over
Kiddell’s objection that allowed the jury to consider the
existence of the presumption of testamentary capacity and
whether the presumption had been rebutted.    Instruction  8
stated:
Your verdict must be based on the facts as
you find them and on the law contained in all of
these instructions.
The only question in this case is whether
the writing of June  15,  2010, is the last will of
Louise Bradford Judsen.    In deciding this
question you will have to consider these issues:
(1) The proponent of the will, the defendant
Mr. Labowitz is entitled to a presumption that
Ms. Judsen had testamentary capacity on June  15,
2010, at the time she executed the writing.
(2) The opponents of the will, Laurie A.
Kiddell and Leann M. Kiddell, must introduce
evidence sufficient to rebut the presumption of
testamentary capacity.
(3) If you find that the opponents of the
will have introduced evidence sufficient to rebut
the presumption, the burden rests upon the
proponent of the will to prove by the greater
weight of the evidence that Ms. Judsen had
testamentary capacity at the time of the
execution of the June  15,  2010, writing.
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Similarly, Instruction  9 stated:
You shall find your verdict in favor of
complainants, Laurie A. Kiddell and Leann M.
Kiddell, if you find that they have introduced
evidence sufficient to rebut the presumption of
testamentary capacity and defendant, Mr.
Labowitz, has failed to prove by the greater
weight of the evidence that Ms. Judsen had
testamentary capacity at the time of the
execution of the writing.
You shall find your verdict in favor of the
defendant, Mr. Labowitz, if the complainants have
failed to present evidence sufficient to overcome
the presumption of testamentary capacity or
defendant, Mr. Labowitz, has proved testamentary
capacity at the time of execution by the greater
weight of the evidence.
Kiddell objected to these instructions, arguing that because the
presumption of testamentary capacity had been rebutted, the
presumption disappeared and the only issue for the jury to
resolve was whether Labowitz proved Judsen’s testamentary
capacity by the greater weight of the evidence.    The trial court
responded that  “I haven’t ruled  [that] you rebutted the
presumption.    I ruled there was  .  .  . sufficient evidence on the
question  .  .  . of whether you rebutted it.    If you hadn’t, this
case would have been over this morning.”3
3 When ruling on Labowitz’ motion to strike, the trial court
stated that the  “burden has been met,” and  “therefore the motion
to strike will be denied.”    Standing alone, this statement
leaves one to wonder whether the  “burden” that had been  “met”
was the submission of sufficient evidence to survive a motion to
strike or evidence sufficient to rebut the presumption.    The
trial court answered this question by rejecting Kiddell’s
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The jury returned a general verdict in favor of Labowitz,
as executor of Judsen’s estate.    In a final order, the circuit
court entered judgment in accordance with the jury verdict and
ordered that the June will is Judsen’s  “Last Will and
Testament.”    We awarded Kiddell this appeal on two issues:  (1)
whether the circuit court erred by granting Instructions  8 and
9; and  (2) whether the circuit court erred by denying Kiddell’s
motion to strike the evidence.
II. ANALYSIS
A. Presumption of Testamentary Capacity
When reviewing whether proper jury instructions were given
by a trial court, this Court’s  “sole responsibility  .  .  . is to
see that the law has been clearly stated and that the
instructions cover all issues which the evidence fairly raises.”
Swisher v. Swisher,  223 Va.  499,  503,  290 S.E.2d  856,  858
(1982); accord Hancock-Underwood v. Knight,  277 Va.  127,  131,
670 S.E.2d  720,  722  (2009).                                        “Whether the content of  [an]
instruction is an accurate statement of the relevant legal
specific assertion during discussions regarding the jury
instructions at issue, when counsel asserted that  “Your Honor
has ruled that we have  .  .  . rebutted the presumption.”    The
court immediately responded,  “I haven’t ruled  [that] you
rebutted the presumption.”    This clarification, coupled with the
fact that the trial court proceeded to instruct the jury that
there was a presumption that they should consider, clearly
indicates that the trial court did not decide that Kiddell had,
as a matter of law, rebutted the presumption.
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principles is a question of law that, like all questions of law,
we review de novo.”    Hancock-Underwood,  277 Va. at  131,  670
S.E.2d at  722.
On appeal, Kiddell argues that the presumption disappears
when a trial court determines that the opponent has presented
evidence to rebut it.    Thus, according to Kiddell, it was
reversible error for the court to give Instructions  8 and  9 and
that only Instructions  5 and  6 were necessary to instruct the
jury properly.    Labowitz responds that Instructions  8 and  9,
together with Instructions  5 and  6, clearly stated which party
“was aided by a presumption and the obligations of each party to
present evidence on the issue of testamentary capacity.”
Labowitz contends he was entitled to Instructions  8 and  9
because those instructions properly informed the jury that, as
the proponent of the validly executed June will, he was aided in
meeting his burden of persuasion by a presumption of
testamentary capacity that remained unless Kiddell produced
sufficient evidence to rebut the presumption.
Generally,  “[a] presumption is a rule of law that compels
the fact finder to draw a certain conclusion or a certain
inference from a given set of facts.”    Martin v. Phillips,  235
Va.  523,  526,  369 S.E.2d  397,  399  (1988).    Thus,
[a] party is as much entitled to a benefit of a
presumption of law as he would be to have any
other appropriate legal rule applied to the facts
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of his case; and, where the facts which are
required to give rise to the presumption are
proven, the presumption must be applied  (the
presumed fact must be assumed to have been
proven) until evidence sufficient to overcome the
presumption and prove the contrary shall have
been introduced.
Simpson v. Simpson,  162 Va.  621,  642,  175 S.E.  320,  329  (1934).
“The primary significance of a presumption is that it operates
to shift to the opposing party the burden of producing evidence
tending to rebut the presumption.”    Martin,  235 Va. at  526,  369
S.E.2d at  399; see also Rule  2:301.
In a will contest,  “the proponent of the will is entitled
to a presumption that testamentary capacity existed by proving
compliance with all statutory requirements for the valid
execution of the will.”    Gibbs v. Gibbs,  239 Va.  197,  200,  387
S.E.2d  499,  501  (1990).    Such a
presumption arises where the will is  “in writing
and signed by the  [testatrix]  .  .  . in such
manner as to make it manifest that the name is
intended as a signature; and moreover, unless it
be wholly in the handwriting of the testator, the
signature shall be made or the will acknowledged
by him in the presence of at least two competent
witnesses, present at the same time; and such
witnesses shall subscribe the will in the
presence of the testator, but no form of
attestation shall be necessary.”
Weedon v. Weedon,  283 Va.  241,  252-53,  720 S.E.2d  552,  558
(2012)  (quoting Code  §  64.1-49).    The burden of persuasion
always remains with the proponent of the will, but once the
proponent has proven compliance with statutory requirements for
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a valid will, the burden of production shifts to the opponent to
“go forward with evidence sufficient to rebut the presumption.”
Gibbs,  239 Va. at  200-01,  387 S.E.2d at  501  (emphasis added).
When a word is commonly used and has an accepted meaning, a
trial court need not instruct the jury as to the meaning of the
word.    See Wells v. Commonwealth,  60 Va. App.  111,  123-24,  724
S.E.2d  225,  231  (2012)  (citing Clark v. Commonwealth,  220 Va.
201,  211,  257 S.E.2d  784,  790  (1979)).    Black’s Law Dictionary
treats  “sufficient evidence” and  “satisfactory evidence” as
synonymous.    State v. Narron,  666 S.E.2d  860,  865  (N.C. Ct. App.
2008).    It defines  “satisfactory evidence” as  “[e]vidence that
is sufficient to satisfy an unprejudiced mind seeking the truth.
- Also termed sufficient evidence; satisfactory proof.”    Black’s
Law Dictionary  639  (9th ed.  2009).                                     “Sufficient” means
“[a]dequate; of such quality, number, force or value as is
necessary for a given purpose  <sufficient consideration>
<sufficient evidence>.”    Id. at  1571.
As early as  1908, this Court addressed the propriety of
advising the jury of the presumption in will contests and
allowing them to consider it.    Hopkins v. Wampler,  108 Va.  705,
706-08,  62 S.E.  926,  927-28  (1908); see also Tate v. Chumbley,
190 Va.  480,  500-01,  57 S.E.2d  151,  160-61  (1950); Jenkins v.
Trice,  152 Va.  411,  440,  147 S.E.  251,  260  (1929); Rust v. Reid,
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124 Va.  1,  26,  97 S.E.  324,  331  (1918); Huff v. Welch,  115 Va.
74,  76,  86,  78 S.E.  573,  575,  578  (1913).
Where, however, the sanity of the testator
is put in issue by the evidence of the
contestant, the onus probandi lies upon the
proponent to satisfy the court or jury that the
writing propounded is the will of a capable
testator.    Yet, upon the trial of that issue,
there is an existent presumption in favor of the
testator’s sanity.    Indeed, of such force is that
presumption in our jurisprudence, that though one
be on trial for a felony, involving life or
liberty, when the defense of insanity is relied
on, it must be proved to the satisfaction of the
jury.
Hopkins,  108 Va. at  707,  62 S.E. at  927.    A few years later,
this Court approved the following instruction based on its
holding in Hopkins:
While the burden of proof is upon those offering
a will for probate, to show testamentary capacity
on the part of the testator at the time the will
was executed to the satisfaction of the jury, yet
the court tells the jury that there is in all
cases an existing presumption in favor of the
testator’s sanity and capacity, which is to be
taken into consideration by the jury in
determining the question of competency.
Huff,  115 Va. at  76,  86,  78 S.E. at  575,  578.4    For the next
hundred years, the Court addressed and approved the exact same
4 The jury in the instant case was specifically told to
determine whether the opponents had presented sufficient
evidence to rebut the presumption of testamentary capacity.    In
prior cases, the jury was told that they were to take  “into
consideration” the presumption of testamentary capacity when
“determining the question of competency.”    Rust,  124 Va. at  26,
97 S.E. at  331; see e.g., Tate,  190 Va. at  500,  57 S.E.2d at
160; Huff,  115 Va. at  76,  86,  78 S.E. at  575,  578.    Telling the
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instruction or a close variant.    See Tate,  190 Va. at  500-01,  57
S.E.2d at  160-61; Jenkins,  152 Va. at  440,  147 S.E at  260; Rust,
124 Va. at  26,  97 S.E.2d at  331.
Here, Labowitz contends that Instructions  8 and  9 were
similar to jury instructions approved by this Court in Rust and
Tate.    In Rust, one of the issues on appeal involved the
following jury instruction:
While the burden of proof is upon those offering
a will for probate, to show testamentary capacity
on the part of the testator at the time the will
was executed to the satisfaction of the jury, yet
the court tells the jury that there is in all
cases an existing presumption in favor of the
testator’s sanity and capacity, which is to be
taken into consideration by the jury in
determining the question of competency.
124 Va. at  26,  97 S.E. at  331  (internal quotation marks
omitted).    The objecting party contended that the latter part of
the instruction conflicted with the first part.    Id.    Rejecting
that argument, this Court first explained that when the
jury to take the presumption into consideration is the
functional equivalent of instructing the jury to determine
whether the evidence was sufficiently rebutted.    Indeed, this
practice is not without precedent in will contest cases.    With
regard to lost wills, the Virginia Model Jury Instructions
inform the jury that there is a presumption that a will that was
in the possession of the decedent prior to his death but cannot
be found after his death was destroyed and  “[t]o overcome this
presumption the burden is on  [the proponent] to prove by clear
and convincing evidence that  [decedent] did not revoke the
will.”                                                                  2 Virginia Model Jury Instructions  - Civil, No.  48.055,
at  48-27  (repl. ed.  2011).
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proponent of a will shows compliance with all the statutory
requirements for due execution,  “the legal presumption of sanity
comes to his relief and dispenses with any evidence to the
contrary.” Id. at  25,  97 S.E. at  331.
In Tate, the issue at trial was  “which, if either, of two
paper writings, both being testamentary in character, dated
respectively April  27,  1915, and November  29,  1916  .  .  .
constitute[d the] last will and testament” of Margaret S. Tate.
190 Va. at  485-86,  57 S.E.2d at  153.    A jury returned a verdict
sustaining the  1916 will.    Id. at  486,  57 S.E.2d at  154.
Evidence at trial showed that Tate was  “mentally capable” of
making the  1915 will but that during the six months thereafter,
her mental capacity became impaired.    Id. at  489,  57 S.E.2d at
155.    On November  23,  1915, she was  “adjudged to be insane.”
Id.
In that case, the jury was instructed, inter alia, that
while the burden of proof is upon those offering
a will for probate, to show testamentary capacity
on the part of the testatrix at the time the will
was executed to the satisfaction of the jury, yet
the court tells the jury that all persons who
have not been adjudged insane are presumed to be
sane and capable of making a will until the
contrary is proved, and that this presumption is
to be taken into consideration by the jury in
determining the question of competency.
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Id. at  500,  57 S.E.2d at  160  (internal quotation marks omitted).
This Court again approved instructing a jury as to the
presumption of testamentary capacity.
Thus, recognizing that this Court has a long history of
approving jury instructions on the presumption of testamentary
capacity, we must determine whether such instructions were
appropriate in this case.
As Kiddell correctly argues, in most contexts in Virginia,
a presumption disappears when the presumption is rebutted as a
matter of law.    Kavanaugh v. Wheeling,  175 Va.  105,  113,  7
S.E.2d  125,  128  (1940).    However, Kiddell’s contention that the
presumption of testamentary capacity disappears in the face of
any evidence presented to the contrary is incorrect.
A presumption of law cannot be said to be
rebutted where the evidence of equally credible
witnesses for and against the presumption is
equally balanced.    The rebutter has not carried
the burden imposed upon him by law.    Where the
evidence for and against the presumption are
equal the presumption will prevail.
Rowe v. Rowe,  144 Va.  816,  822,  130 S.E.  771,  772  (1925).       “The
presumption of sanity is rebuttable, but it is not necessarily
extinguished by conflicting evidence.”    Nelms v. Nelms,  236 Va.
281,  287,  374 S.E.2d  4,  8  (1988).
Kiddell’s argument not only ignores the fact that the trial
court did not actually rule that the presumption was rebutted,
but also, in persisting in her argument, Kiddell ignores the
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trial court’s ultimate role in ruling on a motion to strike.
“In ruling on a motion to strike, trial courts should not
undertake to determine the truth or falsity of testimony or to
measure its weight.”    Williams v. Vaughan,  214 Va.  307,  310,  199
S.E.2d  515,  517-18  (1973).                                            “The credibility of witnesses and
the weight to be given their testimony are matters peculiarly
within the province of the jury.”    Id. at  310,  199 S.E.2d at
517; see also Higgins v. Bowdoin,  238 Va.  134,  141,  380 S.E.2d
904,  908  (1989)  (holding the trial court failed to adhere to the
principles governing motions to strike when it  “undertook to
determine the truth or falsity of the testimony and to weigh the
evidence”).    For purposes of the motion to strike, a trial court
must  “accept as true all evidence favorable to a plaintiff and
any reasonable inferences that may be drawn from such evidence.”
James v. City of Falls Church,  280 Va.  31,  38,  694 S.E.2d  568,
572  (2010).
In ruling on Labowitz’ motion to strike Kiddell’s evidence,
the trial court was required to accept as true all evidence
favorable to Kiddell and any reasonable inferences therefrom.
It necessarily follows that when the trial court denied
Labowitz’ motion to strike, it implicitly found that the
evidence presented by Kiddell, if accepted by the jury as true
and given sufficient weight, could rebut the presumption of
testamentary capacity.    However, the determination of whether
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the evidence did, in fact, rebut the presumption, was not made
by the trial court when it ruled on the motion to strike.    The
trial court’s denial of Labowitz’ motion to strike amounted only
to a ruling that Kiddell’s evidence could potentially rebut the
presumption, not that it did, as a matter of law, rebut the
presumption.
Indeed, to hold otherwise would improperly equate the
denial of a motion to strike with the granting of a motion for
partial summary judgment.    The trial court may only enter a
partial summary judgment when it has granted a motion to strike.
See Code  §  8.01-378.    When the trial court has denied a motion
to strike,  “the trial continues as if the motion had not been
made.”    William H. Bryson, Bryson on Virginia Civil Procedure
§  11.05[4]  (4th ed.  2005).    Therefore, when the trial court
denied Labowitz’ motion to strike, the trial was to continue, as
it did, with the presumption in favor of testamentary capacity
still in place and for consideration by the jury.
The existence of the presumption of testamentary capacity
is a matter of law, but whether the presumption has been
sufficiently rebutted is a question of fact.    Given the
necessary role of the presumption in the factual determinations,
the presumption does not disappear unless, as a matter of law,
no rational finder of fact could find that the presumption had
not been rebutted.
19




Unlike in some other jurisdictions, in Virginia a
presumption disappears only if rebutted by ascertained or
established facts or by substantial evidence  “showing the true
facts to be to the contrary.”    Kavanaugh,  175 Va. at  113,  7
S.E.2d at  128(emphasis added); Schmitt v. Redd,  151 Va.  333,
344,  143 S.E.  884,  887  (1928); but cf., In re Mid-South Towing
Co.,  418 F.3d  526,  531  (5th Cir.  2005)  (“Evidentiary
presumptions  .  .  . are designed to fill a factual vacuum. Once
evidence is presented  .  .  . presumptions become superfluous
because the parties have introduced evidence to dispel the
mysteries that gave rise to the presumptions.”); Hertz v. Record
Publ’g Co.,  219 F.2d  397,  399  (3d Cir.  1955)  (holding that a
presumption  “disappears when contrary evidence of the fact in
issue is introduced”); Heffenger v. Heffenger,  3 A.2d  95,  97
(N.H.  1938)  (“When there is either evidence, or an inference
from evidence, bearing upon the issue of a testator’s intention
to include or exclude a particular item of property from the
terms of his will the presumption against partial intestacy
disappears.”).    Once Labowitz presented evidence that the June
will was executed in compliance with statutory requirements,
there was a presumption that Judsen had testamentary capacity at
the time she executed that will.    That presumption could be
rebutted by evidence that Judsen was not competent at that time.
However, even when the opponent of a will produces evidence
20




that, if believed, could ascertain or establish facts sufficient
to rebut the presumption of the testator’s capacity, the
determination of whether the presumption has been rebutted is to
be determined by the jury, unless the opponent has rebutted the
presumption as a matter of law.    The evidence presented by
Kiddell, while potentially sufficient to rebut the presumption
of capacity if believed, did not, as a matter of law, ascertain
or establish Judsen’s incapacity as a true fact.    Thus, it was
not sufficient to rebut the presumption as a matter of law.    The
circuit court did not err in ruling that the presumption had not
been rebutted or in sending the evidence to the jury.
When the proponent of a will enjoys the presumption of
testamentary capacity, the jury must be instructed as to this
presumption.    Where the evidence is in equipoise, the
presumption comes to the proponent’s rescue, allowing him to
prevail.    Indeed, if the jury is not advised of the presumption,
the proponent is deprived of this benefit and, in the face of
equal evidence, would be found to have not carried his burden
even though the law is otherwise.    For this reason, we hold that
the presumption of testamentary capacity does not disappear,
unless the circuit court rules that the presumption was rebutted
as a matter of law because no rational fact finder could find
that the presumption had not been rebutted.    In this case, the
circuit court did not err in instructing the jury as to the
21




existence of the presumption.
B.    Motion to Strike the Evidence
Kiddell also argues that the circuit court erroneously
denied the motion to strike Labowitz’ evidence because he failed
to prove Judsen was aware of her family members and the natural
objects of her bounty when she executed the June will.    In light
of the terms of Judsen’s April will leaving her estate primarily
to Laurie, Lee Kiddell, and LeeAnn Kiddell and also naming  12
other relatives who were to receive nothing, Kiddell contends
that it was incumbent upon Labowitz to prove that Judsen was
aware of all these individuals when she executed the June will.
According to Kiddell, even Dunston had no knowledge of the
Judsen’s family members because he was not aware of the April
will.
Kiddell does not challenge the sufficiency of the evidence
to sustain the jury verdict.    Instead, by challenging the
circuit court’s refusal to sustain her motion to strike
Labowitz’ evidence, Kiddell contends that Labowitz failed to
establish a prima facie case of testamentary capacity because he
failed to prove that Judsen knew the natural objects of her
bounty.    See Costner v. Lackey,  223 Va.  377,  382,  290 S.E.2d
818,  820  (1982)  (“In considering the motion to strike the
plaintiffs’ evidence, the trial court was not sitting as the
fact finder but was ruling on a matter of law to determine
22




whether the  [plaintiffs] had made out a prima facie case.”).
When considering such a motion to strike, a trial court must
review the evidence in the light most favorable to the non-
moving party.    Baysden v. Roche,  264 Va.  23,  25,  563 S.E.2d  725,
726  (2002).    The same standard applies to our review of the
trial court’s decision on the motion to strike.    Id. at  26,  563
S.E.2d at  726.
Generally,  “[t]estamentary capacity is the term used to
describe the degree of mental capacity required for the valid
execution of a will.”    Gibbs,  239 Va. at  199,  387 S.E.2d at  500.
Such capacity exists, if at the time a will is executed, the
testator is " 'capable of recollecting her property, the natural
objects of her bounty and their claims upon her, knew the
business about which she was engaged and how she wished to
dispose of the property.' "    Weedon,  283 Va. at  252,  720 S.E.2d
at  558  (2012)  (quoting Tabb v. Willis,  155 Va.  836,  859,  156
S.E.  556,  564  (1931)).    The time of a will’s execution  “is the
critical time for determining testamentary capacity.”    Thomason
v. Carlton,  221 Va.  845,  853,  276 S.E.2d  171,  175  (1981); accord
Parish v. Parish,  281 Va.  191,  200,  704 S.E.2d  99,  104  (2011).
The testimony of witnesses present at the time of execution is
entitled to  “the greatest consideration” on the issue of a
testator’s mental capacity.    Id.                                        “[I]n determining the mental
capacity of a testator, great weight is to be attached to the
23




testimony of the draftsman of the will, of the attesting
witnesses, and of attending physicians."    Hall v. Hall,  181 Va.
67,  76,  23 S.E.2d  810,  814  (1943); accord Parish,  281 Va. at
200,  704 S.E.2d at  105.
According to Dunston, who drafted the June will and
witnessed its execution, Judsen fully understood that she was
executing a will.    He described Judsen as knowing her property,
the natural objects of her bounty, and her wishes for the
disposal of her assets.    The two paralegals from his office, one
who served as a witness to the execution of the June will and
the other who served as the notary public, agreed.    Both
testified that they would not have witnessed or notarized the
will if they had doubted that Judsen understood what she was
doing or if she had seemed confused.
Furthermore, Dunston testified that he asked Judsen if she
wished to include any family members as beneficiaries and she
responded  “no.”    She did, however, leave a cash gift and her dog
to Laurie, and she requested that the bequest to the  “Leukemia &
Lymphoma Society Inc.” be made in the name of her mother.
Moreover, both Laurie and Labowitz testified that Judsen became
angry with Laurie when she asked Labowitz to have Judsen
substitute him for her as Judsen’s attorney in fact.
This evidence, however, was in conflict with the testimony
of Dr. Salhan and Dr. Hyde.    Both opined that on June  15,  2010,
24




Judsen was not capable of making decisions about her property.
When a conflict exists in the  “testimony on a material point, or
if reasonably fair-minded  [persons] may differ as to the
conclusions of fact to be drawn from the evidence, or if the
conclusion is dependent on the weight to be given the
testimony,” a jury issue exists.    State Farm Mut. Auto. Ins. Co.
v. Davies,  226 Va.  310,  319,  310 S.E.2d  167,  171  (1983)
(internal quotation marks omitted); accord Cohn v. Knowledge
Connections, Inc.,  266 Va.  362,  366,  585 S.E.2d  578,  581  (2003);
O’Brien v. Everfast, Inc.,  254 Va.  326,  330,  491 S.E.2d  712,  714
(1997).    Thus, the circuit court did not err by refusing to
strike Labowitz’ evidence and, instead, allowing the issue of
testamentary capacity to be decided by the jury.
III. CONCLUSION
The circuit court did not err in granting Instructions  8
and  9, nor did it err in refusing to grant Kiddell’s motion to
strike Labowitz’ evidence.    Therefore, we will affirm the
circuit court’s judgment.
Affirmed.
CHIEF JUSTICE KINSER, with whom JUSTICE LEMONS and JUSTICE MIMS
join, concurring in part and dissenting in part.
In Kavanaugh v. Wheeling,  175 Va.  105,  7 S.E.2d  125  (1940),
this Court held that if a presumption "is rebutted or overcome
25




by substantial evidence showing the true facts to be to the
contrary, the presumption disappears."    Id. at  113,  7 S.E.2d at
128.    The majority does not disagree with this principle.
Citing Kavanaugh, the majority, nevertheless, concludes that the
presumption of testamentary capacity does not disappear unless,
as a matter of law, no rational finder of fact could find that
the presumption has not been rebutted.1    Continuing, the majority
concludes that because the evidence presented by the opponents
of the will did not establish the testator's incapacity as a
matter of law, it was not sufficient to rebut the presumption.
Finally, the majority holds that if the evidence is in
equipoise, the presumption of testamentary capacity "comes to
the proponent's rescue, allowing him to prevail."
Under the majority's construct, the presumption remains in
the case as positive evidence to be weighed in determining
whether the proponent has carried the ultimate burden of proving
testamentary capacity by a preponderance of the evidence unless
the opponent has established testamentary incapacity as a matter
of law.    In my view, that test for determining when the
presumption of testamentary capacity disappears is inconsistent
with the principle stated in Kavanaugh.    Moreover, a finding
that the opponent of a will has proven testamentary incapacity
1 The decision in Kavanaugh does not hold that a presumption
disappears only when rebutted "as a matter of law."
26




as a matter of law means that no rational fact finder could find
the existence of testamentary capacity when the will was
executed and judgment must therefore be entered in favor of the
opponent.    Furthermore, assuming the majority is correct in its
conclusion that, unless the opponent establishes testamentary
incapacity as a matter of law, the presumption of testamentary
capacity remains as evidence in the case and aids the proponent
in carrying the ultimate burden of persuasion, Instructions  8
and  9 did not instruct the jury accordingly.    The majority,
nevertheless, holds that the circuit court did not err by giving
Instructions  8 and  9.
Unlike the majority, I believe that the presumption of
testamentary capacity disappears when an opponent goes forward
with evidence sufficient to rebut the presumption.    In my view,
the presumption is not evidence for a jury to consider.    Thus, I
respectfully concur in part and dissent in part.2
In a will contest, a presumption of testamentary capacity
arises when the proponent of a will proves compliance with all
statutory requirements for the valid execution of the will.
Gibbs v. Gibbs,  239 Va.  197,  200,  387 S.E.2d  499,  501  (1990).
"The primary significance of a presumption is that it operates
2 I concur with part II, section B. of the majority opinion
and agree that the circuit court did not err by denying the
opponents' motion to strike the evidence.
27




to shift to the opposing party the burden of producing evidence
tending to rebut the presumption."    Martin v. Phillips,  235 Va.
523,  526,  369 S.E.2d  397,  399  (1988).    To rebut the presumption
of testamentary capacity, the opponent of the will must go
forward with evidence sufficient to rebut the presumption.
Gibbs,  239 Va. at  201,  387 S.E.2d at  501.    When "the facts which
are required to give rise to the presumption are proven, the
presumption must be applied  (the presumed fact must be assumed
to have been proven) until evidence sufficient to overcome the
presumption and prove the contrary shall have been introduced."
Simpson v. Simpson,  162 Va.  621,  642,  175 S.E.  320,  329  (1934)
(emphasis added).
As we explained in Kavanaugh, a presumption disappears when
evidence sufficient to rebut it is introduced.                           175 Va. at  113,
7 S.E.2d at  128.    There, a plaintiff sought to recover damages
for personal injuries sustained when an automobile owned by
defendants was negligently operated by their employee.    Id. at
108,  7 S.E.2d at  125.    The defendants asserted that, at the time
of the accident, the employee was not operating the vehicle
within the scope of his employment but rather was using it for
his own "mission."    Id.    The plaintiff argued that certain
evidence adduced at trial, along with "the prima facie
presumption that the automobile was being operated in the
business of its owners," was sufficient to present to the jury
28




the question whether the employee was acting within the scope of
his employment at the time of the accident. Id. at  111-12,  7
S.E.2d at  127.
We concluded that the trial court erred by failing to
sustain a motion to strike at the close of the evidence.
Discussing the presumption that "proof that  [an] automobile was
owned by  [a] defendant establishes a prima facie case that the
automobile was being operated by the defendant or someone for
him, under circumstances making him liable" for injuries
sustained by the negligent operation of the vehicle, we
explained that the prima facie case was "merely an inference or
presumption that may be rebutted, with the burden of overcoming
it resting upon the defendant."    Id. at  112-13,  7 S.E.2d at  128.
Continuing, we stated:
This prima facie presumption, like other
presumptions, cannot stand in the face of
positive facts to the contrary.  .  .                                   . Therefore,
if the presumption thus created is rebutted or
overcome by substantial evidence showing the true
facts to be to the contrary, the presumption
disappears.    Presumptions give way to ascertained
or established facts.
Id. at  113,  7 S.E.2d at  128.
In other words, " '[p]resumptions are indulged in to supply
the place of facts; they are never allowed against ascertained
and established facts.    When these appear, presumptions
disappear.' "    Schmitt v. Redd,  151 Va.  333,  344,  143 S.E.2d
29




884,  887  (1928)  (quoting Lincoln v. French,  105 U.S.  614,  617
(1882)).    See also Virginia Birth-Related Neurological Injury
Comp. Program v. Young,  34 Va. App.  306,  310-11,  541 S.E.2d  298,
300-01  (2001)  (explaining that, under one theory, a presumption
disappears if evidence is produced to rebut the presumption); In
re Mid-South Towing Co.,  418 F.3d  526,  531  (5th Cir.  2005)
("Evidentiary presumptions  .  .  . are designed to fill a factual
vacuum.    Once evidence is presented  .  .  . presumptions become
superfluous because the parties have introduced evidence to
dispel the mysteries that gave rise to the presumptions.");
Hertz v. Record Publ'g Co.,  219 F.2d  397,  399  (3d Cir.  1955)
(holding that a presumption "disappears when contrary evidence
of the fact in issue is introduced"); Richmond Sand & Gravel
Corp. v. Tidewater Constr. Corp.,  170 F.2d  392,  394  (4th Cir.
1948)  ("The presumption is not evidence for the consideration of
the jury  .  .  . and once rebutted in either of these fashions,
disappears from the case."); Heffenger v. Heffenger,  3 A.2d  95,
97  (N.H.  1938)  ("When there is either evidence, or an inference
from evidence, bearing upon the issue of a testator's intention
to include or exclude a particular item of property from the
terms of his will the presumption against partial intestacy
disappears."); Dromgoole v. White,  239 N.Y.S.2d  747,  748  (N.Y.
App. Div.  1963)  (A "presumption is not evidence but serves in
place of evidence until the opposing party comes forward with
30




his proof, whereat it disappears.    It has no weight as evidence
and is never to be considered in weighing evidence."); but cf.
City of Hopewell v. Tirpak,  28 Va. App.  100,  117,  502 S.E.2d
161,  169  (1998)  (discussing "three  .  .  . presumptions in
Virginia law that have the effect of shifting both the burdens
of production and persuasion with regard to a particular factual
issue").
Contrary to the majority and Kenneth E. Labowitz, the
proponent of the will at issue, our decisions in Tate v.
Chumbley,  190 Va.  480,  57 S.E.2d  151  (1950); Jenkins v. Trice,
152 Va.  411,  147 S.E.  251  (1929); Rust v. Reid,  124 Va.  1,  97
S.E.  324  (1918); Huff v. Welch,  115 Va.  74,  78 S.E.  573  (1913);
and Hopkins v. Wampler,  108 Va.  705,  62 S.E.  926  (1908), did not
address, much less answer, the question whether the presumption
of testamentary capacity disappears when rebutted by sufficient
evidence of incapacity or as the majority concludes, when the
opponent establishes the testator's incapacity as a matter of
law.    Quoting jury instructions from those cases, the majority
states that "this Court has a long history of approving jury
instructions on the presumption of testamentary capacity."
Instructions in those cases did tell the jury that a
presumption exists in favor of a testator's capacity and that
the presumption was to be considered in determining competency.
However, in all those cases, this Court discussed jury
31




instructions to address issues different than the one now before
us.    Not one of those cases even tangentially involved the
question whether the presumption of testamentary capacity
disappears when rebutted by sufficient evidence of incapacity.
The majority does not claim otherwise, nor can it.    Thus, the
mere fact that the instructions were given and quoted with
approval is not dispositive in the instant case.    See Gibbs,  239
Va. at  202,  387 S.E.2d at  501  (stating that the fact an
instruction similar to one challenged on appeal was given in
another case was "not instructive in the instant case").    Any
suggestion otherwise cannot stand in the face of our cases that
have dealt specifically with rebuttable presumptions and
recognize that they disappear when rebutted.    See Kavanaugh,  175
Va. at  113,  7 S.E.2d at  128  (holding that "if the presumption
.  .  . created is rebutted or overcome by substantial evidence
.  .  .  , the presumption disappears"); Simpson,  162 Va. at  642,
175 S.E. at  329  (holding that "the presumption must be applied
(the presumed fact must be assumed to have been proven) until
evidence sufficient to overcome the presumption and prove the
contrary shall have been introduced"); Schmitt,  151 Va. at  344,
143 S.E. at  887  (" 'Presumptions are indulged in to supply the
place of facts; they are never allowed against ascertained and
established facts.    When these appear, presumptions
disappear.' ")  (quoting Lincoln,  105 U.S. at  617).
32




Moreover, Instructions  8 and  9 are different from those
given in Tate, Jenkins, Rust, and Huff.    Those instructions told
the jury to consider the presumption when determining the
question of competency.    In contrast, Instructions  8 and  9 did
not inform the jury that it should consider the presumption in
determining whether Labowitz, as the proponent of the will, met
his burden of proving testamentary capacity by a preponderance
of the evidence.    Instead, Instruction  8 informed the jury that
Labowitz was entitled to a presumption that the testator had
testamentary capacity at the time she executed the will at
issue, that Laurie Kiddell and LeAnn Kiddell  (collectively
referred to as "Kiddell"), must introduce evidence "sufficient"
to rebut the presumption, and that, if Kiddell did so, Labowitz
had the burden to prove testamentary capacity by the greater
weight of the evidence.    Instruction  9 told the jury to decide
in favor of Kiddell, if they "introduced evidence sufficient to
rebut the presumption of testamentary capacity" and if Labowitz
then "failed to prove by the greater weight of the evidence"
that the testator had testamentary capacity when she executed
the will.    The instructions further told the jury to find in
favor of Labowitz if Kiddell failed to rebut the presumption of
testamentary capacity or if Labowitz proved testamentary
capacity "by the greater weight of the evidence."
33




Thus, contrary to the majority's assertion, nothing in
Instructions  8 or  9 was the "functional equivalent" of the
instructions recited in our prior cases because those
instructions did not inform the jury that the opponent had to go
forward with evidence to rebut the presumption of testamentary
capacity, nor did they tell the jury to decide if the opponent
had rebutted the presumption of testamentary capacity.
Furthermore, contrary to the majority's construct of the role
the presumption plays, Instructions  8 and  9 did not tell the
jury that if the evidence is in equipoise, the presumption tips
the scales in favor of Labowitz and permits a finding that he
proved testamentary capacity by a preponderance of the evidence.
Yet, this is one of the reasons offered by the majority to
explain why a jury must be instructed about the presumption of
testamentary capacity.    Thus, using the majority's rationale,
the circuit court erred by giving Instructions  8 and  9.    But,
the majority does not so hold.    Consequently, trial courts in
the future will not know whether to instruct a jury in a will
contest using instructions like those in our prior cases or
instructions similar to Instructions  8 and  9.
In my view, the presumption of testamentary capacity arose
when Labowitz demonstrated that the testator executed the will
at issue in accordance with the requirements of Code  §  64.1-49.
The presumption remained in the case "until evidence sufficient
34




to overcome the presumption and prove the contrary  [was]
introduced."    Simpson,  162 Va. at  642,  175 S.E. at  329.    Thus,
Kiddell had to go forward with evidence of testamentary
incapacity sufficient to rebut the presumption.3    If Kiddell
failed to do so, then the presumption remained and Labowitz was
entitled to judgment in his favor at that point in the trial.4
When Labowitz moved to strike Kiddell's evidence, arguing
that the opponents had failed to rebut the presumption of
testamentary capacity, the circuit court stated that "the only
question is whether or not there is evidence presented by the
opponents of the will to rebut the presumption of capacity. And
the  [c]ourt is going to find that that burden has been met by
the  [opponents] and therefore the motion to strike will be
denied."5    Thus, as explained by this Court in both Kavanaugh and
3 Kiddell had to present "sufficient" evidence, not merely
"any" evidence, of incapacity.
4 A presumption is not rebutted and prevails when "evidence
of equally credible witnesses for and against the presumption is
equally balanced."    Rowe v. Rowe,  144 Va.  816,  822,  130 S.E.
771,  772  (1925); see also Nelms v. Nelms,  236 Va.  281,  287,  374
S.E.2d  4,  8  (1988).
5 The majority states that it is unclear whether the circuit
court concluded that Kiddell had rebutted the presumption
because of its later decision to give Instructions  8 and  9.
During the colloquy regarding jury instructions, the circuit
court stated it had not ruled that the opponents rebutted the
presumption but had ruled that there "was  .  .  . sufficient
evidence on the question  .  .  . of whether you rebutted it.    If
[the opponents] had  [not], this case would have been over this
morning."    The court's last statement is unquestionably correct.
Moreover, under our prior decisions, a finding of sufficient
evidence to rebut the presumption of testamentary capacity means
35




Simpson, the presumption of testamentary capacity disappeared at
that point.    Accordingly, the circuit court erred by granting
Instructions  8 and  9.    See Diederich v. Walters,  357 N.E.2d
1128,  1132  (Ill.  1976)  (once evidence opposing the presumption
comes into the case, the presumption ceases to operate,
"therefore eliminat[ing] the need for any instruction to the
jury regarding the presumption"); Breadheft v. Cleveland,  110
N.E.  662,  663  (Ind.  1915)  ("The ordinary function of most so-
called presumptions of law, as they relate to the law of
evidence, is to cast on the party against whom the presumption
works, the duty of going forward with evidence, and when that
duty is performed the presumption is functus officio and has no
proper place in the instructions to the jury."); United Missouri
Bank v. March,  650 S.W.2d  678,  680-81  (Mo. Ct. App.  1983)
("[W]hen some substantial evidence is produced by the party
presumed against, 'however slight' the presumption disappears
and the trier of facts receives the issue free of the
presumption.").
Finally, I point out that, under the majority's decision
today, a jury will determine whether the opponent of a will has
the presumption is rebutted.    Gibbs,  239 Va. at  201,  387 S.E.2d
at  501.    The majority's conclusion that the circuit court's
denial of Labowitz's motion to strike "amounted only to a ruling
that Kiddell's evidence could potentially rebut the presumption"
begs the question whether a trial court or a jury decides if the
opponent of a will has rebutted the presumption of testamentary
capacity.    In my view, a trial court makes that determination.
36




rebutted the presumption of testamentary capacity.    The
majority, however, gives no guidance as to the definition of the
legal standard of "sufficient evidence."6    So, each jury in a
will contest will have to decide what is meant by "evidence
sufficient to rebut the presumption of testamentary capacity."
I fear that different juries will use varying definitions.    Even
the circuit court in ruling on Labowitz's motion to strike noted
the absence in our jurisprudence of a definable evidentiary
standard to employ in deciding if the opponent of a will has
rebutted the presumption of testamentary capacity.    Perhaps the
absence of such guidance is indicative of the fact that a jury
in such a case does not decide whether a presumption, operating
as a rule of law, has been rebutted.    See Martin v. Phillips,
235 Va.  523,  526,  369 S.E.2d  397,  399  (1988)  ("A presumption is
a rule of law  .  .  .                                                   .").
For these reasons, I conclude that the circuit court erred
by giving Instructions  8 and  9.    Instructions  5 and  6 correctly
6 The majority states that the phrase "sufficient evidence"
has a commonly accepted definition and that a trial court,
therefore, does not need to instruct a jury as to its meaning.
But if a jury is instructed as to the meaning of the phrase
"greater weight of the evidence" or "preponderance of the
evidence" and is also told that the opponent of a will must
present "sufficient evidence" to rebut the presumption of
testamentary capacity, it is unclear that a jury will know that
it should apply its common understanding of the phrase
"sufficient evidence."
37




stated the applicable law.7    I respectfully concur in part and
dissent in part, and I would remand this case to the circuit
court for a new trial.
7 Instructions  5 and  6 are set forth in  2 Virginia Model
Jury Instructions  - Civil, No.  48.040, at  48-19  (repl. ed.
2011).
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JUSTICE McCLANAHAN, concurring.
I agree with the majority's holding that the circuit court
did not err in granting Instructions  8 and  9 or in refusing to
grant Kiddell's motion to strike Labowitz's evidence.    I write
separately because I believe it is unnecessary for us to
determine whether the evidence in this case was sufficient to
rebut the presumption of testamentary capacity as a matter of
law because Kiddell did not move the circuit court for such a
determination.
When Kiddell objected to Instructions  8 and  9, she argued
that in denying Labowitz's motion to strike, the circuit court
ruled that the presumption of testamentary capacity had been
rebutted as a matter of law.    As the majority states, however,
the circuit court did not rule that the presumption had been
rebutted.    Rather, the circuit court ruled that Kiddell had
presented sufficient evidence to permit the jury to determine
whether the presumption had been rebutted.    Furthermore, as the
majority explains, when the circuit court denied Labowitz's
motion to strike, it could not have ruled that the presumption
had been rebutted as a matter of law since such a ruling would
have amounted to the granting of a motion for partial summary
judgment at trial.    See Code  §  8.01-378  (circuit court may only
enter partial summary judgment when it has granted a motion to
39




strike).    Thus, the only ruling made by the circuit court on the
issue of whether Kiddell rebutted the presumption of
testamentary capacity was that Kiddell presented sufficient
evidence to submit this issue to the jury.
Kiddell did not move for partial summary judgment on the
issue of whether she rebutted the presumption as a matter of
law, but only opposed the motion to strike her evidence.1
Therefore, the issue of whether Kiddell rebutted the presumption
as a matter of law was not before the circuit court and is not
before this Court.    Since the circuit court did not rule, and
indeed could not have ruled, that the presumption was rebutted
as a matter of law when it denied Labowitz's motion to strike, I
would hold that it was not error for the circuit court to
instruct the jury regarding the presumption of testamentary
capacity.2    However, because Kiddell did not move for partial
1 In fact, had Labowitz simply not made the motion to
strike, the issue of whether Kiddell presented sufficient
evidence to rebut the presumption of testamentary capacity would
not have been addressed by the court prior to its instructions
to the jury.
2 I agree with the majority that the content of instructions
8 and  9 was consistent with instructions on the presumption of
testamentary capacity that this Court has previously approved
and, thus, was an "accurate statement of the relevant legal
principles."    Hancock-Underwood v. Knight,  277 Va.  127,  131,  670
S.E.2d  720,  722  (2009).    See, e.g., Tate v. Chumbley,  190 Va.
480,  500,  57 S.E.2d  151,  160  (1950); Culpepper v. Robie,  155 Va.
64,  70,  154 S.E.  687,  689  (1930); Jenkins v. Trice,  152 Va.  411,
440,  147 S.E.  251,  260  (1929); Green v. Green's Ex'rs,  150 Va.
452,  462,  143 S.E.  683,  686  (1928); Rust v. Reid,  124 Va.  1,  26,
97 S.E.  324,  331  (1918); Huff v. Welch,  115 Va.  74,  76,  86,  78
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summary judgment on the issue of whether she rebutted the
presumption as a matter of law, I would not address whether
Kiddell, in fact, rebutted the presumption as a matter of law.
S.E.  573,  757,  578  (1913)  (holding that the trial court did not
err in giving instruction informing jury that in  “all cases
there is an existing presumption in favor of testator’s sanity
and capacity, which is to be taken into consideration by the
jury in determining the question of competency).
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