Eugene T. Hague, Jr., Esq.
Patrick McFarland, Esq.
Redmond, McFarland & Hague
Parkersburg, West Virginia
Counsel for Appellees
Larry N. Sullivan, Esq.
Parkersburg, West Virginia
Counsel for Jay Memel
C. Darren Tallman, Esq.
Parkersburg, West Virginia
Counsel for Appellants
George E. Lantz, Esq.
Parkersburg, West Virginia
Counsel for Robert K. Tebay, Jr.,
and Robert K. Tebay, III
This Opinion was delivered PER CURIAM.
1. "'"It is not error to refuse to give an instruction to the
jury, though it states a correct and applicable principle of law,
if the principle stated in the instruction refused is adequately
covered by another instruction or other instructions given." Syl.
pt. 2, Jennings v. Smith, 165 W. Va. 791, 272 S.E.2d 229 (1980),
quoting syl. pt. 3, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897
(1966). Syl. pt. 2, McAllister v. Weirton Hospital Co.,  W.
Va. , 312 S.E.2d 738 (1983).' Syllabus Point 4, Jenrett v.
Smith,  W. Va. , 315 S.E.2d 583 (1983)." Syl. Pt. 9,
State v. Deskins, ___ W. Va. ___, 380 S.E.2d 676 (1989).
2. "'If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.' W. Va. R. Evid.
702." Syl. Pt. 3, Ventura v. Winegardner, ___ W. Va. ___, 357
S.E.2d 764 (1987).
This is an appeal by Glenn Memel, Joe Memel, Carl "Butch"
Memel, and Nancy Memel from a judgment order of the Circuit Court
of Wood County, entered on December 13, 1989, which reflected a
jury verdict adverse to the appellants. The appellants, four of
the five natural children of Mr. Carl Memel, deceased, contend that
the jury verdict of December 7, 1989, finding that Mr. Memel did
not have the necessary testamentary capacity when he executed his
last will and testament, was unsupported by the evidence. We
disagree with the contentions of the appellants, find no reversible
error, and affirm the decision of the Circuit Court of Wood County.
Mr. Carl Memel died on April 28, 1989. Survivors included
five natural children, four of whom are the appellants, and two
step-children, the appellees Holmes R. "Butch" Shaver and Sharon
Shaver Klopp. Mr. Memel's wife, Annie, had predeceased him in May
1988. Mr. Memel's other natural child, Jay Memel, is an appellee
in this action.
Mr. Memel executed a will on September 16, 1988, which devised his entire estate to his five natural children and one of his two step-children, Sharon Shaver Klopp. Mr. Memel had also executed an earlier will on June 23, 1986, which directed that his entire
estate should be devised to his two step-children and one of his
sons, appellee Jay Memel, if his wife Annie predeceased him. His
remaining four children, the appellants, were expressly
disinherited in the 1986 will.See footnote 1
This action was initiated by appellees Mr. Shaver and Mrs. Klopp on May 25, 1989, in order to ascertain whether Mr. Memel, allegedly suffering from Alzheimer's disease, possessed the necessary testamentary capacity when he executed the 1988 will.See footnote 2 During a pretrial conference held on November 17, 1989, the parties stipulated that the 1986 will was at the time of its execution valid in all respects. A jury trial was conducted on December 5, 6, and 7, 1989. The proponents of the 1988 will, the four appellants, began the trial by calling witnesses who testified concerning Mr. Memel's mental capacities at the time of the execution of the 1988 will. Testimony was introduced through two nephews, Charles Thomas Halfhill and Albert William Halfhill; two attesting witnesses, Robert Eddy and Alfred Dye; Mr. Memel's housekeeper from August 1988 through April 1989, Norma Wright;
another housekeeper, Mary Griffith; and the attorney who prepared
the 1988 will, Robert Full.
Charles Thomas "Tom" Halfhill and Albert William "Bill"
Halfhill were Mr. Memel's nephews. They testified that Mr. Memel
often expressed to them a desire to change his will. Tom Halfhill
accompanied Mr. Memel to the bank to examine the 1986 will prior to
the execution of the 1988 will, and Mr. Halfhill testified that Mr.
Memel thereafter expressed a strong desire to change his will.
Bill Halfhill's son, Steve, an attorney, scheduled a meeting
between Mr. Memel and Steve's former law school classmate, attorney
Robert Full. On September 16, 1988, Mr. Memel went to Mr. Full's
office to discuss the preparation of the new will. Alfred Dye and
Robert Eddy, friends of Mr. Memel, testified that they attended a
retirement luncheon with Mr. Memel the morning the will was signed
and later witnessed the signing of the will at Mr. Full's office.
Janet Memel, the wife of appellant Joe Memel, had driven Mr. Memel
to the attorney's office.
Both witnesses to the signing of the will, Mr. Dye and Mr. Eddy, testified that Mr. Memel appeared to understand the matters involved in making his will and actively participated in the process. Norma Wright, Mr. Memel's housekeeper at the time of the execution of the 1988 will, testified that Mr. Memel had discussed changing his will with her and also testified that she arrived at Mr. Memel's home following the signing of the will to find Mr.
Memel sitting with his hand on the will. He commented to her about
the will, explaining that he had gotten "everything taken care of
and this is very important." Mrs. Wright also explained that Mr.
Memel mentioned the will the following day and told her that he had
to find a place to put it.
Robert Full, the attorney who prepared the will, testified
concerning his contact with Mr. Memel. Mr. Full explained that he
had initially been contacted by Steve Halfhill and had been told by
Mr. Halfhill that Mr. Memel wished to change his will. Mr.
Halfhill also explained that two old friends of Mr. Memel would
serve as witnesses to the will. An appointment was then scheduled
for later that week. Mr. Full testified that he and Mr. Memel
discussed the 1986 will and the changes desired for the formulation
of the 1988 will.
The contestants of the will, appellees Mr. Shaver and Mrs. Klopp, thereafter introduced the testimony of various individuals and physicians regarding Mr. Memel's testamentary capacity at the time the 1988 will was executed. These witnesses included the decedent's treating physician, Dr. David Avery; a trust officer who had assisted Mr. Memel in his financial affairs, Randall Law; Mr. Memel's housekeeper from 1969 to August 1988, Vera Morehead; Co-executors Robert K. Tebay, Jr. and Robert K. Tebay, III; former Chairman of the Board of the Bank of Lubeck, Pat Ferrell; Mr. Memel's housekeeper in May 1988, Linda Harrach; a friend who
observed Mr. Memel on the day he signed the 1988 will, James
McAtee; and Mr. Memel's treating physician at the time he signed
the 1988 will, Dr. Paul Allen Brooks, Jr.
Both Dr. Avery and Dr. Brooks testified that Mr. Memel lacked the requisite capacity to make a will on September 16, 1988. The appellants challenge the testimony of Dr. Avery on the grounds that he did not actually examine Mr. Memel until six months after the execution of the 1988 will. Dr. Avery, however, had reviewed Mr. Memel's extensive medical history in conjunction with his treatment of Mr. Memel and had concluded that Mr. Memel's mental incapacity was already quite severe in September 1988. Moreover, Dr. Avery quoted an April 6, 1987, report from records of the Cleveland Clinic regarding Mr. Memel's capacity as follows: "He appears to be in a state of progressive loss of memory and function over the past one year. Currently he is disoriented for time and place. He currently thinks this is February 1976." Dr. Avery testified that the Cleveland Clinic's findings were consistent with his own, explaining that Mr. Memel was unable to respond coherently to questions regarding medical history. Mr. Memel was able to communicate and give answers, but those answers would change from minute to minute. Dr. Avery diagnosed Mr. Memel as being in a fairly severe state of Alzheimer's disease, a neurological degeneration of an individual's thought processes. Dr. Avery testified that the Alzheimer's disease rendered Mr. Memel incapable of rationally thinking or making judgments. Dr. Avery further
explained that patients suffering from Alzheimer's disease are
typically affected over a period of several years and that the
onset of the disease is extremely gradual. Consequently, Dr. Avery
opined that Mr. Memel's thought processes and general condition
would not have been much different in September 1988 than in March
1989 when Dr. Avery examined Mr. Memel.
Dr. Paul Brooks was Mr. Memel's treating physician at the time
of the execution of the 1988 will. Dr. Brooks testified that he
examined Mr. Memel in March 1988, June 1988, July 1988, August
1988, October 1988, November 1988, January 1989, and February 1989.
Dr. Brooks described Mr. Memel as "totally incapacitated" during
those visits and expressed an opinion that Mr. Memel did not have
the ability to recall the property of which he would dispose in his
will or understand the nature of the business of making a will in
James McAtee, a family friend, visited Mr. Memel at his home
immediately after Mr. Memel signed the 1988 will. Mr. McAtee
testified that Mr. Memel was disoriented and asked Mr. McAtee what
all those people were doing on his back porch. In reality, only
the housekeeper was on the back porch. A few moments later, Mr.
Memel told Mr. McAtee that he was going home. Mr. Memel then
proceeded out of his own barn, across a large field, and headed
toward a housing development.
Mrs. Vera Morehead, Mr. Memel's housekeeper for approximately
nineteen years, also testified regarding Mr. Memel's mental
incapacities.See footnote 3 Mrs. Morehead explained that Mr. Memel would lose
his keys on a daily basis and would throw away social security
checks, stock certificates, and retirement checks. Mrs. Morehead
resigned from her employment as Mr. Memel's housekeeper because Mr.
Memel required full-time care and because Mrs. Morehead feared that
Mr. Memel would shoot her with guns he kept in his drawer. Mrs.
Morehead further testified that she had seen Glenn Memel on only
four or five occasions in the nineteen years she worked for Mr.
Memel, had met Joe Memel for the first time at Mr. Memel's funeral,
and saw Nancy Memel for the first time at trial.
Mr. Randall Law, the Senior Trust Officer at Commercial Banking and Trust Company of Parkersburg, testified that a money management trust had been established for Mr. Memel. The establishment of the trust had been recommended by Dr. Paul Brooks and Mr. Robert Tebay, III, Mr. Memel's attorney. The trust was established on March 4, 1988. Mr. Law testified that Mr. Memel was unable to carry on any meaningful dialogue during their conversations. Mr. Law also testified that Mr. Memel asked no questions about the trust and exhibited no concerns about his assets. When Mr. Memel would inquire about having enough cash, Mr.
Law would open Mr. Memel's billfold to find four to five hundred
dollars in cash.
After hearing all the evidence, the jury returned the
following verdict on December 7, 1989: "We, the jury, find by a
preponderance of the evidence that Carl D. Memel was not of sound
mind on September 15, 1988, and thereby did not have the required
mental capacity to write his last will and testament."
The appellants first contend that the lower court erred by
failing to instruct the jury that the testimony of the lawyer who
prepared the will and the attesting witnesses was entitled to
particular weight. Although not specified by the appellants, this
assignment of error appears to be predicated upon the appellants'
offer and the lower court's refusal of two jury instructions which
would have assigned greater weight to the individuals who witnessed
the actual execution of the will.
We have previously approved of the type of instruction
requested by the appellants in the following cases: Frye v. Norton,
148 W. Va. 500, 135 S.E.2d 603 (1964); Stewart v. Lyons, 54 W. Va.
665, 47 S.E. 442 (1904); and Kerr v. Lunsford, 31 W. Va. 659, 8
S.E. 493 (1888). However, we have never stated that it is error not
to give such an instruction.
In support of their position, the appellants suggest that the lower court did not explain that the crucial period in which Mr. Memel's mental capacity was to be evaluated was at the time of the execution of the will. In reality, however, the trial judge made six separate references to the "time of the execution of the will." Additionally, the jury was given proper instruction on the method of evaluating and assigning appropriate weight to each witness' testimony.
We have previously stated that "'"It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl. pt. 2, Jennings v. Smith, 165 W. Va. 791, 272 S.E.2d 229 (1980), quoting syl. pt. 3, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). Syl. pt. 2, McAllister v. Weirton Hospital Co.,  W. Va. , 312 S.E.2d 738 (1983).' Syllabus Point 4, Jenrett v. Smith,  W. Va. , 315 S.E.2d 583 (1983)." Syl. Pt. 9, State v. Deskins, ___ W. Va. ___, 380 S.E.2d 676 (1989). Thus, if one instruction adequately covers an issue, the lower court may properly refuse a second instruction which would not furnish any additional aid to the jury in reaching a proper verdict. In determining whether a trial court committed error by refusing a requested instruction, this Court will review the jury instructions as a whole. See
Roberts v. Stevens Clinic Hosp., Inc., ___ W. Va. ___, 345 S.E.2d
Furthermore, while it is the duty of the lower court to
sufficiently instruct the jury on the relevance of certain matters
to be decided, it is also imperative that the lower court refrain
from unnecessarily influencing the jury on the weight to be given
to particular witnesses or certain issues. See Browning v.
Hoffman, 90 W. Va. 568, 111 S.E. 492 (1922).
In their second assignment of error, the appellants contend
that the lower court erred by failing to instruct the jury that it
requires less mental function to execute a will than a deed. The
appellants have taken that language from previous opinions of this
Court which have dealt with testamentary capacity. See Kerr, 8
S.E. at 503. We do not deny that such statement is accurate.
However, it is not indispensable that this language be included as
a jury instruction in every case challenging the capacity of a
testator. This is especially true where the appellants did not
even request such an instruction. Furthermore, the jury was more
than adequately instructed on the nature of the quality of mind
necessary in the jury instruction which follows:
It is not necessary that a person should
possess the highest qualities of mind in order
to make a will, nor that he should have the
same strength of mind he may formerly have
had; the mind may be enfeebled, the
understanding may be weak, the character may
be eccentric, and he may even lack capacity to
transact business affairs of life.
Again, the language employed in the above-quoted jury instruction adequately conveys the message the appellants wish to communicate. We find no error by the lower court in failing to instruct the jury with the specific language now requested by the appellants.
The appellants next contend simply that the jury's verdict was
contrary to the evidence presented below. After a thorough review
of the record, portions of which have been summarized in this
opinion, we find no merit to the appellants' contention in this
regard. The jury most certainly could have concluded, given the
extensive evidence of incapacity presented below, that the testator
lacked the requisite testamentary capacity to execute a will on
September 16, 1988.
The appellants also contend that the lower court erred by allowing testimony regarding "certain acts of the testator that were too remote in time and not relevant to the date." This assignment of error is apparently directed primarily toward the introduction of the testimony of Dr. David Avery who treated Mr. Memel for the first time six months after the execution of the 1988 will. We discussed the bases for Dr. Avery's opinion in an earlier portion of this opinion and reiterate here that Dr. Avery's medical opinion was well based in fact and previous medical record. West Virginia Rule of Evidence 702 provides the following: "If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form
of an opinion of otherwise." See also Syl. Pt. 3, Ventura v.
Winegardner, ___ W. Va. ___, 357 S.E.2d 764 (1987). We believe
that Dr. Avery's explanation of Mr. Memel's thought capacity and
Alzheimer's disease was helpful to the jury, and we conclude
accordingly that its introduction was not in error.
Moreover, the appellants did not object to the introduction of
the testimony of Dr. Avery at trial and therefore have not provided
themselves with an appropriate basis upon which to complain on
appeal. See W. Va. R. Evid. 103(a)(1). Furthermore, the
appellants offered no medical expert testimony to challenge Dr.
Avery's medical opinions.
In their final assignment of error, the appellants complain that the lower court erred by "forcing the appellants to go forward with their entire case and to not instruct the jury on the presumption of sanity." We also find this argument unconvincing. The appellants contend that they were placed in "the awkward position" of proceeding with evidence on the issue of testamentary capacity and with contesting the issue of undue influence. The appellants also claim that the lower court did not properly acknowledge their position that the burden of proving undue influence was on the appellees. That contention is of little
consequence at this juncture since the jury never reached the issue
of undue influence. The jury found that Mr. Memel lacked the
necessary testamentary capacity to make a will on September 16,
1988. Therefore, the will became invalid upon that determination,
and the remaining issue of undue influence never had to be
addressed. Consequently, it is untenable for the appellants to
argue that they were prejudiced by any perceived irregularity in
the manner in which that issue was presented.
Based on the foregoing, we conclude that there was no
reversible error in this case, and we therefore affirm the decision
of the Circuit Court of Wood County.
Footnote: 1The 1986 will, in disinheriting the four natural children who are the appellants in this action, stated the following: "I have specifically and deliberately left nothing to my sons, Glenn Memel, Joe Memel and Carl "Butch" Memel, and my daughter Nancy Memel. I do this not out of lack of love or affection for them, but for the reason of their limited contact with me over the last 30 years."
Footnote: 2The two co-executors named in this action, Robert K. Tebay, Jr., and Robert K. Tebay, III, do not have an adversarial role in this litigation because they are named as co-executors in both the 1986 and 1988 wills.
Footnote: 3It should be noted that Mrs. Morehead was included in the 1986 will and was to be given $10,000 if she was still acting as Mr. Memel's housekeeper at the time of his death. However, Mrs. Morehead had resigned prior to Mr. Memel's death and is therefore not entitled to anything under either will.