PRESENT: All the Justices 

HENRY M. FIELDS, ET AL. 

 OPINION BY 

v. Record No. 970112 JUSTICE LAWRENCE L. KOONTZ, JR. 

 April 17, 1998 

BONNIE LOU SALMON FIELDS, ET AL. 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles H. Smith, Jr., Judge 

 In this will contest, we consider whether the trial court 

properly determined that the testator lacked the requisite 

testamentary capacity at the time he executed the later of two 

wills offered for probate. 

 Robert McKinley Fields (testator) died on May 23, 1994, 

leaving two wills. The earlier of these two wills, dated August 

28, 1975, was admitted to probate by the order of the clerk of 

the Circuit Court of Washington County on May 25, 1994. On that 

same day, a will dated November 1, 1988, was also presented to 

the clerk for probate. 

 The testator was married three times. Four children, Katie 

L. Fields Harris, Bertia F. Sanders, Mary Lou Fields Wise, and 

Henry M. Fields, were born of the first marriage. Three 

children, Dale Fields, Carl Fields, and Robert Fields, were born 

of the second marriage. The testator’s final marriage produced 

one child, David Wayne Fields. Henry M. Fields, Bertia F. 

Sanders, and Mary Lou Fields Wise (petitioners) are the 

proponents of the 1988 will. Bonnie Lou Salmon Fields, the 
testator’s widow, and the testator’s remaining children were all 

named as respondents to the petition to have the 1988 will 

admitted to probate. 

 The 1975 will initially acknowledges Bonnie Lou Salmon 

Fields as the testator’s wife, David Wayne Fields as his child 

of that marriage, and four children from the two prior 

marriages, but fails to make any reference to the three other 

children from those marriages. The will divides the estate into 

equal shares to be distributed to Bonnie Lou Salmon Fields and 

David Wayne Fields. In two separate clauses, the will expressly 

excludes the testator’s other children from receiving any share 

of the estate. The will contains attestation and self-proving 

clauses with three witnesses each and a notary’s certification 

in accordance with Code § 64.1-87.1. 

 The 1988 will, which expressly revokes all prior wills, 

provides for the distribution of one-third of the estate to the 

testator’s widow and two-thirds equally among all eight of his 

children. A further provision directs that any debts due from a 

beneficiary are to be deducted from that beneficiary’s share and 

that “heirs that did not contribute to the expense to my 

daughter, Mary Lou, for taking care of me during the week days 

while my wife was at work, equal amount is to be deducted from 

any inheritance that will be due them.” This will also contains 

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attestation and self-proving clauses with two witnesses each and 

a notary’s certification. 

 The petition challenged the order admitting the 1975 will 

to probate and sought an order declaring the 1988 will valid and 

admitting it to probate. Code § 64.1-78. An answer demanding 

strict proof of the claims of the petition was filed on behalf 

of the widow and the testator’s five other children. 

 In a hearing before the chancellor, the petitioners 

presented testimony from the notary and the two individuals who 

witnessed the execution of the 1988 will. The notary testified 

that she knew the testator as a customer of the bank where she 

was employed. She further testified that she spoke with the 

testator and that he acknowledged the writing to be his will. 

She further testified that she would not have notarized the 

execution of the will had she felt there was anything 

“suspicious” or that the testator was not “sane.” 

 Both of the witnesses to the 1988 will were also employees 

of the bank. One testified that she recalled being asked by the 

manager of the bank to witness the execution of the will, but 

that she did not remember anything particular about the 

testator. The other also recalled being asked to witness the 

execution of the will and testified that she believed the 

testator to have been “sane” at that time. 

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 The respondents presented evidence from numerous lay 

witnesses concerning the general mental and physical capacity of 

the testator between 1975 and 1988. In sum, that evidence shows 

that the testator was of declining health, that he was 

increasingly confused, and that he occasionally engaged in 

inappropriate behavior. Several witnesses testified that at 

times the testator would not recognize family members, could not 

discuss current affairs, and could not understand a legal 

document. On cross-examination, several of the witnesses 

conceded, however, that the testator could recognize family 

members and discuss family matters on occasion. Although all of 

these witnesses had regular contact with the testator, none 

testified concerning specific events reflecting his testamentary 

incapacity on November 1, 1988. 

 Mary Lou Fields Wise testified in rebuttal that she 

frequently visited the testator and that he was able to converse 

about politics, read the Bible with her, and sing songs. She 

further testified that while visiting the testator on November 

1, 1988, she informed him that she had to go to the bank. The 

testator asked to accompany her because he also needed to go to 

the bank. In additional rebuttal testimony, Henry M. Fields 

testified that he was also present on November 1, 1988, and that 

the testator stated that he wanted to go to the bank because he 

had a paper he needed to have notarized. Both of these 

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witnesses disputed the testimony of the respondents’ witnesses 

that the testator was confused and could not recognize family 

members. 

 In the final decree, the chancellor found that the 1988 

will was invalid “due to [the testator’s] physical and mental 

[incapacity].” The decree further provided that the 1975 will 

was the testator’s last will and that its admission to probate 

was proper. We awarded the proponents of the 1988 will this 

appeal. 

 The sole issue in this appeal is whether the evidence 

supports the chancellor’s finding that the testator lacked the 

requisite testamentary capacity when he executed the 1988 will. 

Our resolution of this issue is guided by well established 

principles. 

 The proponents of the 1988 will had the burden of proving 

the existence of that degree of mental competence required for 

the valid execution of a will by a preponderance of the evidence 

and retained that burden throughout the proceeding. Gibbs v. 

Gibbs, 239 Va. 197, 199, 387 S.E.2d 499, 500 (1990); Code 

§ 64.1-47. In clarifying the degree of mental competence 

required for a person to have testamentary capacity, we have 

held that a testator need not “retain all the force of intellect 

which he may have had at a former period,” Wooddy v. Taylor, 114 

Va. 737, 741, 77 S.E. 498, 500 (1913), and under certain 

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circumstances may even be legally incompetent to transact other 

business. See Tate v. Chumbley, 190 Va. 480, 493, 57 S.E.2d 

151, 157 (1950). Rather, for testamentary capacity to exist, it 

is sufficient that at the time the testator executed his will, 

he was capable of recollecting his property, the natural objects 

of his bounty, and their claims upon him, and knew the business 

about which he was engaged and how he wished to dispose of his 

property. Tabb v. Willis, 155 Va. 836, 859, 156 S.E. 556, 564 

(1931). 

 "[T]he time of execution of the will . . . is the critical 

time for determining testamentary capacity. The testimony of 

witnesses as to the mental capacity of the testat[or] at this 

time carries great weight." Thomason v. Carlton, 221 Va. 845, 

853, 276 S.E.2d 171, 175 (1981). Evidence of sickness or 

impaired intellect at other times is insufficient, standing 

alone, to render a will invalid. Gilmer v. Brown, 186 Va. 630, 

639, 44 S.E.2d 16, 20 (1947); see also Tate, 190 Va. at 495, 57 

S.E.2d at 158 (testatrix on furlough from mental institution was 

not per se incompetent to execute will). 

 Here, the petitioners presented testimony from the two 

individuals who witnessed the execution of the 1988 will and the 

notary who notarized the signatures of the testator and the 

witnesses. The notary expressly stated that she spoke with the 

testator, that he acknowledged the writing as his will, and that 

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she would not have notarized the execution of the will had she 

believed that he lacked the capacity to execute a will. One of 

the two witnesses corroborated the notary’s testimony. The 

other witness did not disavow her attestation in the selfproving clause. 

 In addition, Mary Lou Fields Wise and Henry M. Fields 

testified that, on the day the testator executed the 1988 will, 

they were in his presence. Both of these witnesses related the 

testator’s desire to go to the bank to have a paper notarized, 

indicating no confusion in that desire or the purpose 

contemplated by the testator as reflected by the occurrence at 

the bank. 

 The respondents’ evidence related to the testator’s mental 

capacity did not directly contradict the testimony of those 

present at the time the testator executed the 1988 will or at 

any time on the day it was executed. While the respondents’ 

evidence established that at other times the testator might very 

well have lacked the requisite mental capacity to execute a 

will, the respondents offered only lay witness testimony. As 

such, the observations of these witnesses are valuable only to 

provide “facts which indicate such incapacity” generally, and 

not as evidence of incapacity on the date the will was executed. 

Thornton v. Thornton’s Executors, 141 Va. 232, 237, 126 S.E. 69, 

70 (1925). In such cases, the testimony of lay witnesses will 

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not overthrow the testimony of the witnesses to the execution of 

the will where the latter evidence is clear as to the testator’s 

capacity at the time the will was executed. See id. at 239, 126 

S.E. at 71. 

 Accordingly, we hold that the evidence of the witnesses to 

the execution of the 1988 will, which must be afforded great 

weight, coupled with the evidence of the other witnesses present 

with the testator on November 1, 1988, establishes by a 

preponderance of the evidence that the testator had the 

requisite testamentary capacity to execute the will on that 

date. 

 For these reasons, we will reverse the chancellor’s decree 

that the 1975 will was properly admitted to probate and remand 

with instructions that the 1975 will be withdrawn from probate 

and that the 1988 will be admitted to probate. 

Reversed and remanded. 

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