Laurie Kiddell and Her Late Cousin Louise[1]

          With a nod to Shakespeare, this is a story about loving your cousin not wisely but too well.  Louise passed away in Virginia bequeathing her cousin and sister in law, Laurie Kiddell, a dog, some silver, and ten thousand dollars.  Kiddell was dubious.  Two months earlier, she and her husband and daughter had been major beneficiaries of the earlier will.  Now this?  Cousin Louise must have lost her mind!

          Kiddell knew that if you succeed in getting a subsequent will invalidated, then the earlier document pops back up as the last word of the decedent.  She claimed Cousin Louise was incompetent, and attempted to get the second will thrown out.  But the lawyer and paralegal for Cousin Louise asserted that their client knew exactly what she was doing.

          Whom did the jury believe?  The jury believed the attorney for Cousin Louise.  Kiddell lost in the trial court and in the Virginia Supreme Court.  Kiddell’s attorney earned nothing for losing the case on a contingent fee, she only got the money, the silver and the dog.[2]


          The 41-paged Supreme Court opinion includes a concurrence (an agreement for different reasons) and a dissent.  The opinion may seem complicated if you are not a lawyer.  Therefore, I will ignore the details and describe the basic message.

          Imagine that instead of going to court, Kiddell was in a costume contest with only two rules:  (1) No admission to the contest without a wearing costume.  And (2) After admission, the best costume wins.  Imagine further that the lawyer for Cousin Louise is hosting the contest in the home where his client passed away.  If no contestant qualifies to get in the door, then the dresses in Cousin Louise’s closet are going to win automatically.  Are you with me so far?

          The first rule in my metaphor — that Kiddell be wearing a costume — is what lawyers call a “presumption”.  A major issue for the Virginia Supreme Court was deciding if this presumption disappears upon admission to my hypothetical home.  The answer is “No.”  You may not change into street clothes as soon as you enter, for the reason that you have not yet participated in the competition.  All that the doorman (trial judge) determines when admitting you is that you have a good enough costume so that you might win; but in the vast majority of cases the doorman does not actually declare you a winner.[3]   Again, you have to keep your costume on until the judging is over; the presumption does not evaporate after you enter the home.

          Now, on to rule number two:  “The best costume wins.”  Remember, if nobody gets through the door to challenge the outfits in Cousin Louise’s closet, her lawyer prevails by default.  But when Kiddell gets through the door, Cousin Louise’s wardrobe cannot win automatically any more.  Now, the attorney for Cousin Louise has to prove to Cousin Louise’s neighbors (the jurors) that Cousin Louise owns the best costume. If he fails, Kiddell wins.  If he succeeds, Cousin Louise’s estate is the prevailing party (and her second will is vindicated as being her true last will and testament.)

          That’s the Kiddell case in layman’s terms.

          In legal terms, the Virginia Supreme Court rules as follows:  (a) Even though Kiddell’s expert medical evidence might be sufficient to rebut the presumption that Cousin Louise was competent to sign will number two, it was properly left up to the jury to determine whether the expert evidence did so in fact.  And (b) The jury was correctly instructed before it found that the estate of Cousin Louise proved by a preponderance of the evidence her competence to sign the second will.

[1]            This commentary on Kiddell v. Labowitz, Record No. 111236 (VA Sup. Ct., November 1, 2012) is intentionally brief and simplified; it is intended for non-lawyers.

[2]            The fee relationship with counsel, the amount of the cash bequest, the gift of silver, and the familial relationship with the decedent were all reported to us by Ms. Kiddell. 

[3]          According to the majority opinion, the doorman (trial judge) only evaluates costumes in black-and-white situations.  At one extreme, if you are not wearing a costume then you are refused entrance.  At the other, if what you wear is so absolutely extraordinary that there is no way something from Cousin Louise’s closet could possibly be better, then you may receive an automatic “win”.  Three justices who disagree with the majority write that, in effect, my proverbial doorman possesses decision-making authority between the extremes.