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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX ) RICHARD A. JENSEN, as Successor Trustee of ) the Karl O. Jensen Trust dated November 18, _) CIVIL NO. SX-14-CV-400 2002, as amended and restated December 8, _) 2005, with Second Amendment dated August } ACTION FOR DECLARATORY 21, 2006, ) | JUDGMENT ) Plaintiff, ) v. ) ) ELLIE S. JENSEN, Jitt ) Defendants. ) ) MEMORANDUM OPINION MOLLOY, Judge Plaintiff Richard A. Jensen (“Richard”), as the successor trustee of the Trust Agreement of Karl O. Jensen Trust, dated November 18, 2002 as Amended and Restated on: December 8, 2005, with Second Amendment dated August 21, 2006 (“2006 Second Amended Trust”), filed this complaint against the Defendant Ellie S. Jensen (“Ellie”) on October 14; 2014.1 Ellie filed her Amended Answer to the Complaint on January 20, 2015. Richard seeks a declaratory judgment pursuant to 5 V.I.C. § 1261 to determine the administration of the Second Amended Trust, including its construction, and specifically whether Ellie is entitled to a distribution of no more than $1,000 from the Trust. The Court held a bench trial on February 13, 2017. During the bench trial, the Court heard sworn testimony from Felice M. : Quigley, Lynne Turturro, Gloria Vaglio Peel, Richard Jensen, and Ellie Jensen, as well as: - 1 The Court will refer to the Plaintiff Richard A. Jensen and the Defendant Ellie S. Jensen by their first names to avoid any confusion with their other family members who are referenced in this Opinion. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion admitted certain exhibits offered into evidence. At the conclusion of the bench trial, the Court permitted the parties to submit post-trial briefs. Plaintiff and Defendant filed their respective post-trial memorandums on March 16, 2017. Richard filed his reply on March 30, 2017 and Ellie filed her reply on April 4, 2017.2 For the reasons stated below, the Court declares that Ellie S. Jensen is entitled to nothing more than a distribution of $1,000 from the 2006 Second Amended Trust. I. FINDINGS OF FACT 1. Karl O. Jensen (a/k/a Karl V. Jensen) (“Karl”) was the settlor/grantor of The Karl 0. Jensen Trust Dated November 18, 2002 As Amended and Restated December 8, 2005 (hereinafter “2005 First Amended Trust”) and his Last Will and Testament of Karl 0. Jensen (hereinafter “Last Will and Testament” or “Karl’s Will”). 2. At all times relevant to the facts of this case, Karl was a resident of St. Croix, United States Virgin Islands. 3. Karl died on June 11, 2008, on St. Croix, United States Virgin Islands. 4. Karl was married to Paulina L. Jensen (“Paulina”) and were husband and wife at the time of his death in 2008. 5. Paulina was a co-trustee of the 2006 Second Amended Trust until her death on September 16, 2011. 6. Richard is the successor trustee. 7. Richard and Ellie are two of several children of Karl. 0. Jensen. ? On April 10, 2017, Plaintiff filed a Motion to Strike Defendant’s reply memorandum because it was untimely ~ five days past the deadline of March 30, 2017. Defendant responded to Plaintiffs Motion to Strike on April 20, 2017. The Court will address the Plaintiff's Motion to Strike in a separate order. Jensen y. Jensen Case No. SX-14-CV-400 Memorandum Opinion 8. The other children include Karl W. Jensen, Herman R. Jensen, Michael L. Jensen, Lisa Jensen, and David Jensen. 9. The 2005 First Amended Trust was executed on December 8, 2005. 10. Karl and Paulina signed the 2005 First Amended Trust. 11. Edward Ronk and Cynthia Challenger witnessed the execution of the 2005 First Amended Trust and signed the document on December 8, 2005. 12. Lynn Turturro, former employee of Attorney Linda M. Baxter (deceased) and notary public, notarized the 2005 First Amended Trust on December 8, 2005. 13. Paragraph 3.4 of the 2005 First Amended Trust governs distributions to Karl's family members. The 2006 Second Amended Trust modified Paragraph 3.3 to. specify distributions to beneficiaries. 14.The 2006 Second Amended Trust changed paragraph 3.3, distribution ‘to beneficiaries, to include a distribution of $1,000 to Ellie. 15. The 2006 Second Amended Trust was witnessed and signed by- Clarissa A. Nielsen, and Norman E. Gerard on August 21, 2006. 16. Lynn Turturro notarized the 2006 Second Amended Trust on August 21, 2006. 17. The 2005 First Amended Trust and the 2006 Second Amended Trust dated August 21, 2006 were both prepared by Attorney Linda M. Baxter. 18. The Last Will and Testament of Karl 0. Jensen devised his assets and property to the 2005 First Amended Trust. 19. Karl signed his Last Will and Testament on December 8, 2005. 20. Lynne Turturro notarized the Last Will and Testament on December 8, 2005. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion 21. Edward M. Ronk and Cynthia Challenger, as attesting witnesses to Karl’s Last Will and Testament dated December 8, 2005, signed affidavits verifying that Karl executed the document according to law, witnessed signatures, and that Karl was not under any duress or fear, and he was mentally competent. 22. The affidavits of the attesting witnesses were notarized by Lynne Turturro. 23.Gloria Peel was Karl’s financial advisor at both Merrill Lynch Bank of America Corporation (a/k/a Merrill Lynch Wealth Management) and UBS AG (a/k/a UBS. Financial Services, Inc.). 24. Attorney Jacobs, on behalf of Richard, sent a letter to Ellie on March 4, 2014, explaining that the successor trustee (Richard) authorized the distribution of $1,000 to her. An acceptance and release document was attached to the letter. 25. In a letter dated March 6, 2014, Ellie rejected the distribution of $1,000 from Karl’s 2006 Second Amended Trust. 26. Attorney Jacobs sent a second letter dated April 2, 2014 on behalf of Richard as successor trustee to distribute to Ellie her $1,000 pursuant to the 2006 Second Amended Trust. 27.In a letter dated April 4, 2014, Ellie rejected her $1,000 distribution and returned the check. She also wrote that Attorney Felice M. Quigley was her father’s attorney, not Attorney Linda Baxter. 28. As of November 18, 2016, Karl does not have any current matters in probate or have a record of matters in probate. 29. Karl was blind and unable to walk for the last five years of his life. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion 30. On October 14, 2014, Richard filed a complaint seeking a declaratory judgment that Ellie is entitled to only $1,000 from the 2006 Second Amended Trust. II. LEGAL STANDARD Under the Virgin Islands Declaratory Judgment Act, the Superior Court has the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed ...[S]uch declarations shall have the force and effect of a final judgment or decree.” 5 V.LC. §§ 1261-1272; see Marsh-Monsanto v. Clarenbach, S. Ct. Civil No. 2014-0075, 2017 V.I. Supreme LEXIS 10, at *24 (V.I. Feb. 10, 2017) (“The purpose of a declaratory judgment action is ‘to declare rights, status, and other legal relations’”.); Estate of George v. George, 50 V.I. 268, 274 (V.I. 2008) (internal citation and quotations omitted) (“The general rule is that a decision is considered final when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”). "The decision to entertain a declaratory action is within the discretion of the Court.” Pate v. Gov't of the V.L,, 62 V.I. 271, 285-86 (V.I. Super. » Ct. 2015) (internal citations and quotations omitted). The matter must involve an actual and justiciable controversy. Walsh v. Daly, Civ. No. ST-01-CV-165, 2014 V.I. LEXIS 36 (V.I. Super. Ct. June 18, 2014); see Companion Assurance Co. v. All. Assurance Co., Ltd., 585 F. Supp. 1382 (D.V.I. 1984). “The controversy must be | definite and concrete, touching the legal relations of parties having adverse legal interests. - It must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Luis v. Dennis, 751 F.2d 604, 607 (3d Cir. 1984); see also Cenni Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion v. Estate Chocolate Hole Landowners Ass'n, Civ. No. ST-15-CV-383, 2016. V.I. LEXIS 98 (V.L Super. Ct. July 18, 2016). III. DISCUSSION Richard contends that Ellie is entitled to nothing more than $1,000 from the 2006 Second Amended Trust pursuant to paragraph 3.3 of the operating document. Richard attempted to distribute the funds to Ellie in a letter dated March 4, 2014. Ellie, on the other hand, argues that Karl had another last will and testament executed ‘in June 2008 that supersedes the 2005 First Amended Trust and 2006 Second Amended Trust where she was : to inherit the No. 8 Estate Wheel of Fortune property. Ellie also contends that Karl should have had special accommodations because at the time he executed the will and trust documents, Karl was blind and immobile. See Def. Post-Trial Mem. at 2-3. The primary issue before the Court is whether Ellie is entitled to a distribution of only $1,000 from the 2006 Second Amended Trust and nothing more. In order to reach that determination, the Court must first decide whether Kar] executed a valid will and trust, and then whether the Court should adopt any special proceedings for when blind persons execute testamentary documents. A. Karl validly executed his Last Will and Testament of Kar] O. Jensen on December 8, 2005. A will is valid if it meets the testamentary requirements pursuant to 15 V.IC. § 1 et - seq. See In re Estate of Walters, 38 V.I. 14, 1997 V.I. LEXIS 25 (V.I. Terr. Ct. 1997). Virgin Islands law requires every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion (1) It shall be subscribed by the testator at the end of the will. (2) Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses. (3) The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. (4) There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. 15 V.IL.C. § 13. Additionally, a testator must have the requisite mental capacity to devise property in order for a will to be valid. 15 V.I.C. § 2.3 Specifically, a testator must be of “sound mind,” which Virgin Islands law defines as: [T]he ability of the testator to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator's relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed. A [testator’s] use of medication, and her illness, weakness and approaching death do not render her incompetent to make a will. The question instead, is whether, in spite of these things, the testatrix had sufficient mental capacity to bring to the making and execution of the will the judgment which the law requires ofa testatrix. .. Of critical concern, therefore, is the [testator’s] mental condition at the time [he] executed the will. In re Estate of Savain, 39 V.I. 91, 100-01 (V.I. Terr. Ct. 1998) (internal citations and quotations omitted) aff'd, 43 V.I. 215, 2000 U.S. Dist. LEXIS 13423 (D.V.I. 2000)). Here, there is no dispute that Karl executed his Last Will and Testament on December 8, 2005. Further, based on the evidence presented at trial, the Court finds that Attorney Linda 3 “All persons, except idiots, persons of unsound mind and persons under eighteen years of age, may devise their real property, by last will and testament, duly executed, according to the provisions of this chapter.” 15 V.LC. § 2. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion M. Baxter prepared the document; Karl signed the document as the settlor; and Paulina was designated as his personal representative for his estate. P]. Ex. 2. Moreover, Article V of the Last Will and Testament instructed the distribution of the remainder of his estate to be devised to the Karl. 0. Jensen Trust Dated November 18, 2002, As Amended and Restated December 8, 2005, Karl. O. Jensen and Paulina L. Jensen, Co-Trustees. The two subscribing witnesses - Edward Ronk and Cynthia Challenger — attested that: (1) they knew Karl; (2) the document Karl signed was his Last Will and Testament; (3) Karl signed the document in their presence; (4) Karl knew that he was signing his will; (5) Karl was mentally competent at the time he signed his will; (6) Karl executed his will using his own free will without fear or . duress; (7) Karl requested the attesting witnesses to witness his Will; (8) that the other witnesses signed the Will in Karl’s presence; and (9) that the signatures of Karl and the two witnesses on the Will are true and genuine. PI. Ex. 2. Lynne Turturro notarized the signatures on the Last Will and Testament and the affidavits for both witnesses. Id. By affidavit, the two witnesses attested that Karl appeared before them and that he signed, acknowledged, and delivered his Last Will and Testament on December 8, 2005. Jd: Finally, both sides stipulated that Karl was mentally competent right up until his death. Pl. Final Pretrial Report at f 2, 4. Def. Pretrial Mem. at 1-2. Therefore, the elements for a validly executed will were performed and Karl’s 2005 Last Will and Testament is a valid testamentary document. Ellie, however, argues that she had a conversation with Karl in 2008 that exposed his intent and contents of his will and trust. Def. Pre-Trial Mem. at 1-2. She claims that Karl had indicated to her that she was to inherit the remainder of the No. 8 Wheel of Fortune property. Further, she contends that Attorney Quigley prepared this last will and testament and Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion refused to release it to her. Jd. See also Pl. Trial Ex. 10. Attorney Quigley sent several letters to the Defendant and testified during trial that she did not prepare any will or trust for Karl. Attorney Quigley’s testimony does not support Ellie’s assertions that there was a superseding will or trust document. But, Ellie has produced no superseding Will that would override Karl’s Last Will and Testament. Thus, Court finds that the weight of the evidence in this matter does not support Ellie’s assertions that Karl executed a last will and testament purporting to bequeath any real property to Ellie or that another Will or trust document exists that would override Karl’s Last Will and Testament and the 2006 Second Amended Trust. B. Karl executed a valid trust agreement pursuant to Virgin Islands law. Richard and Ellie disagree as to whether Karl established a valid trust pursuant to Virgin Islands law. The Virgin Islands Supreme Court determined that “in order to create a valid express trust — as opposed to constructive or resulting trusts... there must be (1) a valid conveyance of a trust property, (2) from a settlor who intends to create a trust, (3) toa trustee to hold legal title (4) for the benefit of a third party beneficiary.” King v. Appleton, 61 V.I. 339, 351-352 (V.I. 2014). “A trust is a legal instrument in which assets are held in the name of the trust and managed by a trustee for the benefit of a beneficiary.” Id. at 350 (internal quotations omitted) (citing Lewis v. Alexander, 685 F.3d 325, 332 (3d Cir. 2012). A testamentary trust is a trust that is contained in a will and goes into effect after the . testator/settlor’s death. In re Estate of Savain, 39 V.1. 77, 80 (V.I. Terr. Ct. 1998). Undoubtedly, the trustee ofa trust has a fiduciary duty to execute the terms of the trust. King, 61 V.I. at 350 (“The trust mechanism... vests legal title to trust property in a trustee, who has enforceable Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion fiduciary duties to manage the property for the benefit of the beneficiaries in order to balance the conflicted desires of persons having conflicting interests in the same [property].” (internal citation and quotations omitted)). Based on the evidence presented, the Court finds that Karl, as the settlor, intended to create, then executed a valid trust on November 18, 2002, and made two amendments dated December 8, 2005 and August 21, 2006. PI. Trial. Ex. 1 and 10. The operating trust agreement, the 2006 Second Amended Trust, was signed by Karl as well as two attesting witnesses (Clarissa A. Nielsen and Normal E. Gerard), and notarized by Lynne Turturro: Id. Also, Karl made a valid conveyance of trust property when he designated that the physical property he owns (Remainder of Plot 8 of Subdivision of Mars Hill, Wheel of Fortune and Stoney Ground, West End Quarter, St. Croix, and Plot 8-C of Estate Mars Hill, Wheel of Fortune and Stoney Ground, West End Quarter, St. Croix), tangible personal property, and financial accounts (See Pl. Trial Ex. 4) be part of the trust corpus. Pl. Trial Ex. 1. The witness, Gloria Peel; Karl’s financial advisor, testified that Karl was a sophisticated individual who knew he had significant assets and had keen knowledge of the financial and investment markets. Additionally, the trust agreements identified trustees to manage the trust - Karl and Paulina were co-trustees until they died in 2008 and 2011, respectively. Then the trust agreements stipulated that Richard would become the successor trustee. Jd. Further, Karl was a beneficiary of the trusts, and identified his spouse, Paulina, as a co-trustee.as well as a third- party trust beneficiary with a life interest in the trusts. He also identified his children, Richard, Michael, Karl, Herman, Ellie, David, and Lisa Jensen, as third-party trust beneficiaries whose interests would vest after the death of his spouse. Pl. Trial. Ex. 1. Karl Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion specifically designated portions of the trusts to his children. For Ellie, the 2006 Second Amended Trust designated to her a specific bequest of $1,000. Pl. Trial. Ex. 10. The 2006 Second Amended Trust did not list any other monies or properties to be bequeathed to her. Thus, the November 18, 2002 trust agreement and the two amendments dated December 8, 2005 and August 21, 2006 satisfy the elements of an express trust and are valid pursuant to Virgin Islands law. C. The Court declines to adopt special proceedings for a testator's/settlor’s disability for the execution of a will/trust by a blind person. Ellie argues that Karl’s 2005 Last Will and Testament and trust agreement are invalid because he was blind, thereby making the will and trust documents he signed untrustworthy and unreliable. Def. Pretrial Mem. at 2. In other words, she argues that the testamentary documents that Karl executed in 2005 and 2006 did not contain his testamentary intent that Karl had communicated to her in 2008 - due to his blindness, Karl would not have known what was in the testamentary documents he signed. Def. Post-Trial Mem. at 5. She contends that there should be special provisions in place for blind individuals when executing testamentary documents. Def. Post-Trial Mem. at 1. Virgin Islands law requires that the Court construe a testamentary document according to the testator/donor’s intent and that the writing produced is the will of the testator. The controlling consideration in determining the meaning of a donative document is the donor's intention. The intention is given effect to the maximum extent allowed by law. Importantly, Virgin Islands courts recognize that ascertaining and giving effect to a testator's intention is the cardinal rule of will construction. The single issue in a will contest is whether the writing produced is the will of the testator. Any ground which, if proved, would Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion invalidate the will, including undue influence, incapacity, fraud or revocation, may state a cause of action. In re Estate of Berry, 2011 V.I. LEXIS 76 *8 (V.I. Super. Ct. Dec. 23, 2011) (internal quotations and citations omitted). Virgin Islands law is silent as to whether a blind person must have special accommodations during the execution of a will or trust agreement. The statute only speaks to the execution of wills and the elements of express trusts, but does not require that a will or trust must be read aloud to the testator/settlor to accommodate for a disability. Numerous courts have had to determine whether a physically disabled, sick, elderly, or illiterate person would be able to know the contents of his or her property, and thus able to execute a valid will or trust. Several courts have opined that “[t]here is a presumption that a testator knows the contents of a properly executed will; his inability to read does not create a contrary presumption that he does not know the contents.” Mann v. Cornish, 185 F.2d 423, 424 n.4 (D.C. Cir. 1950) (citing Lipphard v. Humphrey, 209 U.S. 264, 268-269 (1908)); see also Wood v. Martin, 641 A.2d 853, 854 (D.C. 1994) (“Evidence was presented at trial establishing that the will was properly signed and executed, giving rise to the presumption that testator knew the contents of the will regardless of his inability to read.”); Bye v. Mattingly, 975 S.W.2d 451, 456 (Ky. 1998) (“When a testator is suffering from a mental illness which ebbs and flows in terms of its effect on the testator's mental competence, it is presumed that the testator was mentally fit when the will was executed.”). Specifically, in the cases of blind persons, courts have held that unless a statute requires a special provision for blind persons, they are presumed to have full mental capacity Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion to execute a will and that the testator/settlor being blind does not trigger assumptions of. fraud or undue influence. See In re Bakke's Will, 160 Minn. 56, 60, 199 N.W. 438, 440 (Minn. 1924) (“There is no question of the testamentary capacity of a blind person in the full possession of his normal faculties otherwise.”); In re Estate of Riley, 2014 Minn. App. Unpub. LEXIS 1275, *19 (Minn. Ct. App. Dec. 15, 2014) (“[T]he existence of such physical maladies does not necessarily create a fact issue regarding testator's capacity.”); In re Rowland's Estate, 70 S.D. 419, 423, 18 N.W.2d 290, 292 (S.D. 1945) (“[T]here is no statutory requirement that a will be read to ‘the testatrix or to the witnesses thereto prior to its execution. ...Itis sufficient if the court was satisfied by competent evidence that the contents of the will were known to and approved by her at the time it was executed as a will.”); Lipphard v. Humphrey, 209 U.S. 264, 269, 28 S. Ct. 561, 563 (1908) (“Even if the testator is blind or illiterate, the presumption is that when a will is properly signed and executed, the testator knows the contents.”); Bush v. Lisle, 89 Ky. 393, 402, 12 S.W. 762, 764 (Ky. 1889) (holding that even though the testator was blind when he executed the will, he had the mental capacity to know the contents of his property). In other words, being blind does not automatically invalidate a will or trust or create the presumption that the testator did not know the contents of his will or the nature of his property. Other courts, however, have opined that “whenever a testator, by reason of physical or educational disability, [such] as by blindness or by inability to read the language in which the will is written, is unable by the exercise of his own faculties to see for himself that the will expresses his testamentary desires, an additional burden of proving that the testator. was acquainted with the provisions of the will is imposed upon the proponents of the will if Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion there are any circumstances which lead the court to suspect that he may have been imposed upon." In re Estate of Younggren, 226 lowa 1377, 1384, 286 N.W. 467, 470 (Iowa 1939) (emphasis added). This extra step to prove the validity of a will or trust agreement would only arise where “suspicious circumstances” occurred during the process of creating or executing the will. But, the Court does not find suspicious circumstances in this case, such as fraud, undue influence or lack of mental capacity, because the record demonstrates and witnesses testified to the fact that Karl was of sound mind and knew the contents. of his property when he executed his will and trust documents.4 The Defendant cites two cases from other jurisdictions to support her position that the trust documents are void because Karl was blind and no special circumstances and conditions were imposed to assist him in executing these documents. See Def. Post-Trial Mem. at 1. First, in Bartee v. Thompson, 67 Tenn. 508 (Tenn. 1875) - a 247 year old case - the court held that where the testator is blind or illiterate the presumption that the testator knows the contents of his will is on the proponents. However, in that case, the testatrix had someone else write her name and she made a mark indicating that was her signature. Furthermore, subsequent rulings by Tennessee courts have not applied this rule, or the one * In Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011), the Supreme Court of the Virgin Islands established the Banks analysis, which requires courts to determine Virgin Islands common law through a three- factor test: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Gov't of the V.I. v. Connor, 60 V.1. 597, 603 (V.I. 2014) (internal citations omitted); see Browne v. Stanley, No. 2015-0042, 2017 V.I. Supreme LEXIS 8, at *6 (V.I. Feb. 2, 2017); Antilles Sch., Inc. v. Lembach, 64 V.I. 400, 428 (V.I. 2016). No court in the Virgin Islands has ruled on the issue as to whether a blind person should have special proceedings for the execution of wills and trusts when suspicious circumstances are afoot. However, the Court finds it unnecessary to determine special proceedings for a blind person because the Court finds that there is no evidence to suggest that any suspicious circumstances occurred in this matter. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion stated in Cox v. Cox, 36 Tenn. 81 (Tenn. 1856). See Morrow v. Person, 195 Tenn. 370, 379, 259 S.W.2d 665, 668 - 669 (Tenn. 1953) (holding that in circumstances where an illiterate testator selected an attorney to draft his will that in the absence of contrary proof, the attorney placed in the testator’s will what he directed and read the will as written to the testator; that the attesting witnesses were not beneficiaries of the will: and the circumstantial evidence was enough to prove that the testator understood the contents of his will.). The second case the Defendant cites is Ammons v. Clouds, 295 Ga. 225, 758 S.E.2d 282, (Ga. 2014), which does not apply in this situation. In this case, the testator was blind but failed to validly execute her will because the authenticity of the testatrix’s signature was disputed and her attesting witnesses did not sign the document as required by statute. Had the will been properly executed, it would be “rebuttably presumed to have been executed with the requisite testamentary formalities.” Jd. at 228. Thus, the court needed additional. proof to determine that there were no “suspicious circumstances” in this situation, where the testatrix left all her property to her caregivers and not her relatives. However, the Court does not find these cases persuasive and declines to adopt this approach. In those cases, the testator/testatrix had “suspicious circumstances” during the process of creating and/or executing the will. Here, the record in this case contains no evidence that would indicate or otherwise suggest that Karl executed his testamentary documents under suspicious circumstances. Thus, the Court declines Ellie’s invitation to invalidate the testamentary documents. D. Karl was not unduly influenced in the process of creating and executing his Last. - Will and Testament and the Second Amended Trust. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion Next, Ellie argues in her Answer to the Complaint that the affirmative defenses of failure to state a cause of action, fraud, illegal conduct, unclean hands, perjury, lack of standing to bring this claim, mistake, undue influence, contrary to public policy, not in compliance with the law, adhesion, unjust enrichment, trust and will are invalid under the laws of the Virgin Islands, lack of good faith, lack of authority, and mutual mistake.5 Amend. Ans. at 1-3. However, the Court will only address the affirmative defenses raised by the Defendant during trial - undue influence. In In re Estate of Clemmens, one Superior Court judge summarized the law pertaining to undue influence as follows: Undue influence is not a concept susceptible of unitary definition. The essence of the idea is the subversion of another person's free will in order to assent to an agreement. Where a testator is improperly induced to execute an instrument, in reality, the instrument is not that of the testator as the judgment of another person has been substituted. The proper inquiry for a court is not just whether persuasion induced the transaction but whether the result was produced by the domination of the [other's] will ... by the person exerting undue influence. In re Estate of Clemens, 2012 V.I. LEXIS 80* (V.I. Super. Ct. Sept. 20, 2012) (internal - quotations and citations omitted) (brackets and ellipsis in original) (citing In re Estate of Savain, 39 V.I. at 104). To find undue influence, courts consider the circumstances surrounding the testator and his/her relationships with those alleged to have unduly influenced him. In re Estate of 5 The Defendant did not address the elements of the affirmative defenses of failure to state a cause of action, fraud, illegal conduct, unclean hands, perjury, lack of standing to bring this claim, mistake, contrary to public policy, not in compliance with the law, adhesion, unjust enrichment, trust and will are invalid under the laws of the Virgin Islands, lack of good faith, lack of authority, and mutual mistake. Thus, the Court will not consider these affirmative defenses. Even if the Defendant argued them, the Court finds that the Defendant has not met her burden and the affirmative defenses fail. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion Clemens, 2012 V.I. LEXIS 80 * 10 (V.I. Super. Ct. Sept. 20, 2012). Courts must analyze whether a confidential relationship existed by “the amount of time the beneficiary spent with the testat[or]; whether the beneficiary handled many of the testat[or]'s personal or business affairs; and whether the testat[or] ever sought the advice of the beneficiary.” Id. (internal citation omitted) (brackets in original); In re Estate of Moses, 2010 V.I. LEXIS 114, *6; In re Estate of Savain, 39 V.I. 91, 104 (Terr. Ct. 1998). “These factors [of undue influence] are not exhaustive but are the significant ones to be considered.” In re Estate of Savain, 39 V.I. at 106. “Influences based solely on friendship, affection, and kindness between persons do not amount to undue influence.” In re Estate of Moses, 2010 V.I. LEXIS at *7 (citing In re Estate of Savain at 107). The will contestant has the burden of proof to establish a rebuttable presumption of undue influence ~ once established, the burden of proof shifts to the will proponents to prove by clear and convincing evidence that undue influence did not occur. In re Estate of Clemens, 2012 V.I. LEXIS at *10. Here, Ellie failed to meet her burden to establish a rebuttable presumption of undue influence. She argues that “suspicious circumstances” occurred because no one read aloud either the will or the trust before Karl, completely blind by this point, signed the documents. Def. Post-Trial Mem. at 2.6 Also, Ellie cites Parks v. Parks (in re Estate of Luetgens), CA No. 03A01-9311-CH-00386, 1994 Tenn. App. LEXIS 282 (Ct. App. May 23, 1994), to support her argument that “suspicious circumstances” can be established by 6 Ellie stipulated that the Karl was of sound mind up until his death and thus he had the testamentary capacity to draft a will and trust. Def. Post-Trial Mem., at 2. Further, the record clearly demonstrates that Karl had the mental capacity to create the 2005 and 2006 testamentary documents - he was of sound mind when he executed the will and he understood the nature of his property and the contents of his testamentary documents. Thus, Karl’s mental state is not at issue. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion the existence of a confidential relationship between the testator and the beneficiary; (2) the testator's physical or mental deterioration; (3) the beneficiaries active involvement in procuring the will; (4) secrecy concerning the will's existence; (5) the testator's advanced age; (6) the lack of independent advice in preparing the will; (7) the testator's illiteracy or blindness; (8) the unjust or unnatural nature of the will's terms; (9) the testator being in a distraught state; (10) discrepancies between the will and the testator's expressed intentions; and (11) fraud or duress directed toward the testator. (Citations omitted). Parks v. Parks (in re Estate of Luetgens), CA No. 03A01-9311-CH-00386, 1994 Tenn. App. LEXIS 282, at *5-6 (Ct. App. May 23, 1994) (internal citations omitted) (emphasis in original). While the testatrix in Parks was also blind, her health had rapidly deteriorated before she executed her final will. She executed a second will whereby her new executrix helped her draft and execute the will. The executrix’s husband and daughter were beneficiaries under the new will. The court found that the testatrix was unduly influenced because of suspicious circumstances that occurred at the hospital - the testatrix, who was blind, and the executrix had a confidential relationship, only the executrix knew the contents of the will, and she materially gained under the new will through her husband’s and daughter’s statuses as | beneficiaries. Id. at *5 n.1. In this case, the facts do not give rise to such suspicious circumstances. Ellie asserts that the will and trust documents should have been read to Karl because he was blind due to the fact he could not read braille, and that Karl could not possibly understand what was in his will and trust. Def. Post-Trial Mem., at 2-3. Further, Ellie contends that the Last Will and Testament, the 2005 First Amended Trust, and the 2006 Second Amended Trust must be invalidated because they supposedly do not reflect what her father told her before he died in 2008. Def. Post-Trial Mem., at 2 and 5. Because Ellie believes the documents contain Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion inconsistencies per the distribution of property, she argues that Karl's visual disability must have inherently caused the signed, witnessed and notarized documents to be untrustworthy. Id. at 6. Ellie’s arguments fail for several reasons. Virgin Islands law only requires that at least two persons act as attesting witnesses to the execution of a will; they sign at the end of the will at the request of the testator; the testator’s declared that the document was his last will and testament; and they attest that the testator signed the document. See 15 V.I.C. § 3. None of the attesting witnesses or the public notary were beneficiaries of the will or trust. Karl’s Last Will and Testament contains two attesting witnesses who attested that Karl declared that the instrument was his last will and testament; he personally signed the document; he signed the document upon his own free will; he had the mental capacity; and he was in the presence of the witnesses when he signed; the attesting witness was in the presence of Karl when he signed; and that the signatures on the will are true and accurate. Pl. Ex. 2. Further, the attesting witnesses who had confidential relationships with Karl were not beneficiaries of the will or trust. Even if the attesting witnesses were beneficiaries of Karl’s Will, as mentioned above, Virgin Islands law does not expressly prohibit attesting witnesses from. also being beneficiaries. The evidence in this case demonstrates that Karl hired Attorney Linda Baxter to prepare his testamentary documents, who was not a beneficiary of Karl’s Will or any of the. Trusts. Lynne Turturro, Attorney Baxter’s paralegal, drafted the documents based on Attorney Baxter’s notes from meetings with Karl, visited Kar] at his home to have him sign the testamentary documents, and notarized the signatures of Karl and the attesting Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion witnesses. Lynne Turturro was also not a beneficiary of the testamentary instruments; thus she was a neutral party who had no stake in the Last Will and Testament or any of the trust documents. Also, she testified that Karl’s Will or how it was created and executed did not contain any irregularities, despite what the Defendant argued to the contrary. Thus, her testimony and actions as a notary is the indication that highly suggests that “suspicious circumstances” were not present in this case. Additionally, Karl was a sophisticated individual who had significant knowledge of his financial assets and investment markets. Gloria Peel, Karl’s financial adviser, testified that he understood his assets and was a sophisticated individual of sound mind. See Pl. Trial Ex. 4. See also In re Estate of Edwards, 86 A.D.2d 702, 703, 446 N.Y.S.2d 551, 552 (App. Div. 1982) (upholding a will that was drafted at the instruction of an intelligent and sophisticated testator who clearly and precisely expressed his intensions for his: property). Karl demonstrated his sophistication and knowledge of his assets when he amended the 2005 First Amended Trust to incorporate a detailed and specific distribution of his property to his heirs.” Further, both the Plaintiff and the Defendant stipulated that Karl was of sound mind | until his death. Pl. Post-Trial Mem., at 9 and Def. Post-Trial Mem., at 2. Karl signed his name to both the will and trust agreements. He had attesting witnesses certify that he signed the documents, was of sound mind, and not under undue influence. Ultimately, the circumstances of the preparation of Karl’s testamentary documents as well as the execution demonstrate no suspicious circumstances and was not a product of undue influence. 7 See paragraph 3.3 of Distribution to Beneficiaries in the 2006 Second Amended Trust. Jensen v. Jensen Case No. SX-14-CV-400 Memorandum Opinion IV. CONCLUSION For the reasons stated above, this Court declares that Karl’s Last Will and Testament, 2005 First Amended Trust and 2006 Second Amended Trust were validly executed. Even though Kar] was blind at the time of the execution of these testamentary documents, he had the mental capacity and knowledge to devise his property to the Trust. Further, Ellie has not met her burden to prove undue influence, fraud, or duress. Thus, Ellie is entitled to the specific bequest of $1,000 as stated in the 2006 Second Amended Trust and is not entitled to any other property or assets from the 2006 Second Amended Trust. Dated: December 15, 2017 i “of ROB RE MOU MOLELOY Judge SR MOUr t erjor Court ATTEST: ESTRELLA GEORGE Clerk of the Court lerly Supervisor Dafed: LL