Present: Kinser, C.J., and Lemons, Goodwyn, Millette, Mims, 

and Powell, JJ., and Koontz, S.J. 

SHARA AYERS, ET AL. 

 OPINION BY 

v. Record No. 122043 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR. 

 September 12, 2013 

TONI L. SHAFFER, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

Sage B. Johnson, Judge 

In this appeal, we consider whether the circuit court 

erred in sustaining a demurrer to an amended complaint 

alleging that certain inter vivos financial transfers, which 

significantly reduced a decedent's estate, were the result of 

undue influence exercised by persons in confidential 

relationships with the decedent during her lifetime. 

STANDARD OF REVIEW 

Familiar principles of appellate review guide our 

resolution of this appeal. This case was decided on demurrer. 

"A demurrer admits the truth of all material facts properly 

pleaded. Under this rule, the facts admitted are those 

expressly alleged, those which fairly can be viewed as 

impliedly alleged, and those which may be fairly and justly 

inferred from the facts alleged." Rosillo v. Winters, 235 Va. 

268, 270, 367 S.E.2d 717, 717 (1988); see also Runion v. 

Helvestine, 256 Va. 1, 7, 501 S.E.2d 411, 415 (1998). "A 

demurrer tests the legal sufficiency of facts alleged in the 
2

pleadings, but not the strength of proof. Because the 

decision whether to grant a demurrer is a question of law, we 

review the circuit court's decision de novo." Kaltman v. All 

Am. Pest Control, Inc., 281 Va. 483, 489, 706 S.E.2d 864, 867-

868 (2011) (citation omitted). "Additionally, when, as here, 

a circuit court sustains a demurrer to an amended complaint 

that does not incorporate or refer to any of the allegations 

that were set forth in a prior complaint, 'we will consider 

only the allegations contained in the amended pleading to 

which the demurrer was sustained.'"1

 Lewis v. Kei, 281 Va. 

715, 719, 708 S.E.2d 884, 888 (2011) (quoting Yuzefovsky v. 

St. John's Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 

136 (2001)). 

PROCEDURAL BACKGROUND 

The original complaint in this action was filed in the 

Circuit Court of the City of Bristol on November 7, 2011, and 

an amended complaint was filed by leave of court on February 

27, 2012. We will consider the allegations in the amended 

complaint under the standard of review cited above. 

 1

 Although the amended complaint did not expressly 

incorporate any of the allegations of the original complaint, 

it did reference exhibits attached to the original complaint. 

Accordingly, those exhibits, which were already a part of the 

record, are properly considered part of the amended complaint 

for purposes of resolving the demurrer. See Rule 3:4(b). 
3

When so viewed, the amended complaint established that 

the plaintiffs, Shara Ayers and Ryan Riley, are the great 

grandchildren of Elsie R. Smith ("Elsie") and legatees to one 

half of her residuary estate under a will dated August 3, 

2004. This will was admitted to probate following Elsie's 

death on March 22, 2010. The defendants are Audrey Wingo 

("Audrey"), Elsie's sister and legatee to the remaining half 

of her residuary estate, Toni Lynn Shaffer ("Toni"), her 

husband Bruce Shaffer ("Bruce"), and their son Michael T. 

Shaffer ("Mike"). Elsie's will nominated Toni as executrix, 

and she qualified as executrix of Elsie's estate on April 14, 

2010. 

Ayers and Riley acknowledge that Elsie had become 

estranged from their mother, Elsie's only living grandchild 

and nearest living lineal descendent, and that they had lived 

with their mother in Colorado "for a number of years." During 

this time, Elsie and her husband, Charles Smith ("Charles"), 

lived on their farm in Washington County. In 2004, both Elsie 

and Charles were in poor health and no longer able to care for 

themselves and manage their property and affairs without 

assistance. Beginning April 1, 2004, Toni and Bruce, who 

lived nearby, began providing assistance to the Smiths. 

Charles died on April 23, 2004. Elsie, who was then 80 

years old and suffered from diabetes, dementia and other 
4

medical problems, suffered a rapid decline in her mental and 

physical health following Charles' death. The Shaffers 

continued providing care to Elsie, assisting her with the 

daily activities of living as well as managing her property 

and affairs. 

On May 13, 2004, Elsie went to the office of attorney 

H.G. Peters where she executed a durable power of attorney 

("DPOA") naming Toni as her agent and attorney-in-fact and 

Bruce as alternate agent and attorney-in-fact. The amended 

complaint expressly alleges that "at least [from] the time 

when Toni Shaffer became [Elsie]'s agent under the DPOA, and 

until her death, [Elsie] lacked the mental and physical 

capacity . . . to seek and obtain independent advice on her 

own; to fully understand the complexities and effects of most 

financial transactions." However, the amended complaint 

further alleges that this lack of capacity did not impair 

Elsie's ability "to decide whom she wished her assets to pass 

to upon her death, and to express those wishes in her Will." 

On August 3, 2004, Elsie, Toni, and Bruce returned to 

Peters' office where Elsie executed her last will and 

testament. Article VI of the will references a "contract with 

Toni Shaffer and her husband, Bruce Shaffer" which was 

executed in Peters' office that day. The contract stated that 

Toni and Bruce would provide "needed care" for Elsie for which 
5

they would be paid $500 per week. Additionally, Toni and 

Bruce were to receive $8000 for the assistance given to Elsie 

and Charles since April 2004. The agreement further provided 

that Toni and Bruce would "be paid the monies owed by [Elsie] 

from [her] estate," rather than during her lifetime. 

Likewise, the will directed "payment of any and all sums due 

pursuant to [this] contractual agreement," but otherwise made 

no bequest to Toni or Bruce. The amended complaint expressly 

acknowledges that Toni and Bruce provided care under the 

agreement over the next three years, during which time Elsie 

became "increasingly disoriented, calling [Toni and Bruce] 

several times daily, and at nights." 

On October 29, 2007, Elsie began residing in an assisted 

living facility in Bristol, Tennessee, where her daily needs 

became the responsibility of the staff. In July 2008, she was 

admitted to a local hospital and then moved to a nursing home, 

where she received round-the-clock care from the staff. 

During this time, under the authority of the DPOA, Toni sold 

Elsie's home and the farm. Accordingly, the amended complaint 

alleges that after October 2007 the need for any assistance 

from the Shaffers in caring for Elsie and managing her 

property and affairs was greatly diminished or eliminated 

entirely. 
6

Following Elsie's death on March 22, 2010, an initial 

accounting of her estate filed by Toni in her capacity as 

executrix showed that at the time of her death Elsie had cash 

assets in excess of $1,000,000. However, as a result of 

certain inter vivos financial transactions which included 

survivorship or pay on death provisions, the probate estate 

was less than $600,000. The amended complaint alleges that 

these inter vivos transactions occurred after Toni was made 

Elsie's agent and attorney-in-fact under the DPOA, and were 

the result of Elsie's "complete dependence upon, and justified 

trust in Toni" and the "strong confidential relationship" that 

existed between Elsie and Toni and Bruce, under which they 

"owed [Elsie] the highest degree of fidelity." 

The general background allegations of the amended 

complaint conclude with the assertion that it "relates to 

activities and conduct by Toni Shaffer, after being appointed 

as agent for [Elsie] under the DPOA, and that of [Elsie]'s 

sister, Audrey Wingo, from 2004 until shortly after [Elsie]'s 

death in 2010." Other than to reference her relationship to 

Elsie and identify her as a residuary legatee of Elsie's will, 

no other allegations concerning Audrey are found in the 

general allegations of the amended complaint. 

The amended complaint then lists a series of "financial 

transactions involving Toni Shaffer while serving as [Elsie]'s 
7

agent under the durable power of attorney." Despite this 

description, however, it is not alleged that any of the 

transactions were accomplished using the authority of the 

DPOA. These transactions may be summarized as follows: 

• On May 21, 2004, Elsie signed a customer access agreement 

for an account at Wachovia Bank. Sometime prior to March 

2009, the account was redesignated as "Elsie R. Smith and 

Toni Shaffer, POA." Following Elsie's death, the final 

statement of the account showed only Elsie as the owner 

and indicated that the balance of $83,467.89 was 

withdrawn from the account by a cashier's check payable 

to Audrey directly, rather than to Elsie's estate. 

• On June 22, 2004, Elsie, accompanied by Toni and Audrey, 

transferred the balance of an account at First Tennessee 

Bank titled solely in her name into a certificate of 

deposit of $80,500.00 titled jointly with Toni and Audrey 

with right of survivorship. Toni and Audrey received the 

proceeds from this account following Elsie's death. 

• On November 23, 2004, Elsie, accompanied by Toni and 

Audrey, transferred the balance of a certificate of 

deposit at Highlands Union Bank titled solely in her name 

into a certificate of deposit of $75,018.13 titled 

jointly with Toni and Audrey with right of survivorship. 

When the certificate matured in November 2008, Toni, 

acting as a joint holder of the account, received a 

cashier's check for $87,769.85, with which she opened a 

certificate of deposit at Wachovia Bank in the name of 

Elsie, herself, and Bruce and a pay on death designation 

in favor of Audrey and Benjamin Shaffer ("Benjamin"), the 

Shaffers' grandson. Following Elsie's death, Mike, 

Benjamin's father, received half the proceeds of the 

certificate as custodian for Benjamin, and Audrey 

received the remainder. 

• On September 7, 2007, Toni redeemed certificates of 

deposit at TruPoint Bank and Wachovia Bank for $97,260.56 

and $53,766.84 respectively and deposited these funds 

into an account at Wachovia Securities titled jointly 

with right of survivorship in Elsie's and her names. 

Following Elsie's death, Toni withdrew the account 

balance of $156,976.08 and deposited these funds into an 
8

account titled in her name only. This account was later 

retitled in the Shaffers' names jointly. 

The amended complaint sets out 11 counts which can be 

summarized as follows: Counts 1, 2 and 3 allege breach of a 

"duty as an agent on a joint bank account" by Audrey, Bruce 

and Toni respectively and seek to recover funds for inclusion 

in Elsie's estate. Counts 4, 5 and 6 seek to set aside all 

transactions that directly or indirectly benefited Toni, Bruce 

and Audrey respectively in that they were "procured by undue 

influence" and to recover those funds for inclusion in Elsie's 

estate. Counts 7 and 8 seek to remove Toni as executrix of 

Elsie's estate and to assess damages against her for waste of 

the estate's assets. Counts 9 and 11 are alleged to be 

"against all defendants," but make no express allegations 

against Mike, the Shaffers' son, and seek a declaratory 

judgment concerning Elsie's testamentary intent and 

establishing a constructive trust for any unjust enrichment of 

the defendants. Count 10 seeks a declaratory judgment against 

Toni and Bruce with respect to their contract for personal 

services with the Smiths to determine the amount of 

compensation, if any, they are due from the estate. 

As relevant to this appeal, within the various counts the 

amended complaint repeatedly asserts that Toni, Bruce and 

Audrey each had a confidential relationship with Elsie and 
9

that "[w]here one standing in a confidential relationship to 

another person receives a benefit from that person without an 

exchange of full and fair compensation, a presumption arises 

that the benefit resulted from the exercise of undue 

influence. This presumption is sufficient to satisfy 

Plaintiffs' burden of establishing a prima facie case of undue 

influence." 

On March 19, 2012, the defendants jointly filed a 

demurrer to the amended complaint. The defendants alleged 

that the amended complaint as a whole fails to state any cause 

of action because it asserts that Elsie had testamentary 

capacity. They contended, therefore, that Elsie was likewise 

competent to undertake the financial transactions in which she 

personally participated. Moreover, they contended that since 

Elsie personally participated in these transactions, Toni's 

role as agent and attorney-in-fact are not relevant to 

establishing whether she had a confidential relationship with 

Elsie as to these transactions. 

The defendants further contended that the amended 

complaint fails to allege "facts, as opposed to legal 

conclusions, sufficient to establish that the defendants 

abused their confidential relationship with Elsie Smith." 

This was so, they contended, because Ayers and Riley are 

"rely[ing] upon an evidentiary presumption in order to . . . 
10

circumvent their pleading requirements." Finally, the 

defendants generally denied that the amended complaint 

adequately states grounds for the declaratory relief sought, 

for the establishment of a constructive trust, or for removing 

Toni as executrix of the estate and charging her with waste. 

As relevant to this appeal, Ayers and Riley responded to 

the demurrer by asserting that Elsie's capacity to personally 

participate in some of the financial transactions did not 

negate the possibility that she engaged in those transactions 

as a result of the undue influence of the defendants. 

Moreover, they contended that it was not necessary that Toni 

act directly in her capacity as Elsie's agent and attorney-infact for the confidential relationship implied by that role to 

give rise to an inference of undue influence, especially where 

she benefited disproportionately from the transactions. Ayers 

and Riley further responded that the facts alleged in the 

amended complaint support the evidentiary presumption, that 

the circuit court was required to accept these allegations as 

true and, thus, also that the presumption would apply. 

Similarly, they contended that the allegations of the 

complaint as a whole support the claims for equitable relief 

to restore a portion of Elsie's estate. 

The circuit court conducted a hearing on the demurrer to 

the amended complaint on July 25, 2012. The parties presented 
11

arguments in accord with their positions stated above. At the 

conclusion of the hearing, the court opined that the demurrer 

would be sustained because the amended complaint was "devoid 

of any allegation that [Toni] took any specific act under her 

Durable Power of Attorney to include herself on any account 

that [Elsie] had titled solely in her name." In the court's 

view, the existence of the DPOA was irrelevant to whether any 

action taken personally by Elsie was the result of undue 

influence, because the confidential relationship implied by 

the existence of a power of attorney was relevant only to 

transactions accomplished by virtue of a party acting as an 

attorney-in-fact. 

In a final order entered August 21, 2012, the circuit 

court found that 

the Amended Complaint merely alleges that the 

defendant, Toni Shaffer, transported and accompanied 

[Elsie] when [Elsie] signed various documents 

including her will, general power of attorney, and 

various bank documents adding Ms. Shaffer and others 

as joint owners of various accounts. Significantly, 

the Amended Complaint fails to state facts that 

allege that Toni Shaffer, while acting as an agent 

under the power of attorney, arranged for [Elsie]'s 

assets to pass at death to Toni Shaffer or the other 

named defendants. To the contrary, the exhibits 

attached to plaintiffs' Amended Complaint indicate 

that the assets in question were retitled by [Elsie] 

personally. 

The plaintiffs argued that the fact that 

[Elsie] executed a power of attorney naming Mrs. 

Shaffer as an agent calls into question the validity 

of any subsequent transfer from the principal to the 

agent. The plaintiffs' assertion is not the law in 
12

Virginia. Additionally, plaintiffs continue to rely 

upon the evidentiary presumption that where an agent 

acts under a power of attorney to consummate a 

transaction to the benefit of the agent, the act is 

presumptively fraudulent. . . . [P]laintiffs' 

reliance is misplaced inasmuch as there is no 

allegation in the Amended Complaint that Mrs. 

Shaffer acted under the power of attorney to 

consummate any transaction to the benefit of the 

agent. 

The circuit court further found that "the plaintiffs' 

remaining pleadings which attempt to set forth various 

theories of recovery against the defendants fail to allege 

facts sufficient to state a cause of action." The court 

neither addressed nor made any express ruling with regard to 

the defendants' argument that the amended complaint fails to 

adequately plead that Elsie could have been subject to undue 

influence by Toni or others because it also alleges that she 

had testamentary capacity to make her will. Ayers and Riley 

filed written exceptions to the court's judgment, and this 

appeal followed. 

DISCUSSION 

At the outset, we will clarify what aspects of the 

amended complaint are before us in this appeal. In their 

assignments of error addressing the sustaining of the 

demurrer, Ayers and Riley expressly identify Counts 1, 2, 3, 

4, 5 and 6 of the amended complaint as having been erroneously 

dismissed by the circuit court. As the court's order 
13

sustained the demurrer as to all 11 counts, we hold that Ayers 

and Riley have abandoned Counts 7, 8, 9, 10 and 11 by failing 

to make these claims the subject of an assignment of error. 

WBM, LLC v. Wildwoods Holding Corp., 270 Va. 156, 164, 613 

S.E.2d 402, 407 (2005). Because only Counts 9 and 11 assigned 

liability to "all defendants" and no other count predicated 

any liability against the Shaffers' son Mike, we further hold 

that the court's judgment is final as to him. 

We clearly and concisely stated the law of undue 

influence in the formation of contracts in Parfitt v. Parfitt, 

277 Va. 333, 672 S.E.2d 827 (2009). What we said there bears 

repeating here. 

A court of equity will not set aside a contract 

because it is "rash, improvident or [a] hard 

bargain" but equity will act if the circumstances 

raise the inference that the contract was the result 

of imposition, deception, or undue influence. To 

set aside a deed or contract on the basis of undue 

influence requires a showing that the free agency of 

the contracting party has been destroyed. Because 

undue influence is a species of fraud, the person 

seeking to set aside the contract must prove undue 

influence by clear and convincing evidence. 

Direct proof of undue influence is often 

difficult to produce. In the seminal case of 

Fishburne v. Ferguson, 84 Va. 87, 111, 4 S.E. 575, 

582 (1887), however this Court identified two 

situations which we considered sufficient to show 

that a contracting party's free agency was 

destroyed, and, once established, shift the burden 

of production to the proponent of the contract. The 

first involved the mental state of the contracting 

party and the amount of consideration: 
14

[W]here great weakness of mind concurs 

with gross inadequacy of consideration, or 

circumstances of suspicion, the 

transaction will be presumed to have been 

brought about by undue influence. 

. . . . 

The second instance Fishburne identified arises when 

a confidential relationship exists between the 

grantor and proponent of the instrument: 

[W]here one person stands in a 

relationship of special confidence towards 

another, so as to acquire an habitual 

influence over him, he cannot accept from 

such person a personal benefit without 

exposing himself to the risk, in a degree 

proportioned to the nature of their 

connection, of having it set aside as 

unduly obtained. 

277 Va. at 339-40, 672 S.E.2d at 829 (quoting Bailey v. 

Turnbow, 273 Va. 262, 267, 639 S.E.2d 291, 293 (2007)). 

Thus, "the presumption of undue influence arises and the 

burden of going forward with the evidence shifts [to the 

defendant] when weakness of mind and grossly inadequate 

consideration or suspicious circumstances are shown or when a 

confidential relationship is established." Friendly Ice Cream 

Corp. v. Beckner, 268 Va. 23, 33, 597 S.E.2d 34, 39 (2004) 

(emphases in original); accord Parfitt, 277 Va. at 340, 672 

S.E.2d at 829. Such a confidential relationship is "not 

confined to any specific association of the parties; it is one 

wherein a party is bound to act for the benefit of another, 

and can take no advantage to himself. It appears when the 

circumstances make it certain the parties do not deal on equal 
15

terms, but, on the one side, there is an overmastering 

influence, or, on the other, weakness, dependence, or trust, 

justifiably reposed; in both an unfair advantage is possible." 

Friendly Ice Cream Corp., 268 Va. at 34, 597 S.E.2d at 39-40 

(internal citation omitted); accord Parfitt, 277 Va. at 341, 

672 S.E.2d at 830. 

We have further explained that "[t]rust alone, however, 

is not sufficient. We trust most men with whom we deal. 

There must be something reciprocal in the relationship before 

the rule can be invoked. Before liability can be fastened 

upon one there must have been something in the course of 

dealings for which he was in part responsible that induced 

another to lean upon him, and from which it can be inferred 

that the ordinary right to contract had been surrendered." 

Friendly Ice Cream Corp., 268 Va. at 34, 597 S.E.2d at 40. 

"We have identified several particular classes of 

relationships that may give rise to a presumption of undue 

influence. Among them . . . is when one person is an agent 

for the other." Parfitt, 277 Va. at 341, 672 S.E.2d at 830 

(citing Bailey, 273 Va. at 268, 639 S.E.2d at 293). 

Undeniably, one such relationship is that between a principal 

and a person authorized to act as her agent and attorney-infact. Grubb v. Grubb, 272 Va. 45, 53, 630 S.E.2d 746, 751 

(2006). Importantly, in such cases, the presumption of undue 
16

influence will "arise[] independently of any evidence of 

actual fraud, or of any limitations of age or capacity in the 

other party to the confidential relationship, and is intended 

to protect the other party from the influence naturally 

present in such a confidential relationship." Id. at 54, 630 

S.E.2d at 751 (emphasis added). 

A confidential relationship "springs from any fiduciary 

relationship, and when such relationship is found to exist, 

any transaction to the benefit of the dominant party and to 

the detriment of the other is presumptively fraudulent." 

Nicholson v. Shockey, 192 Va. 270, 278, 64 S.E.2d 813, 817. 

(1951)(emphasis added). Thus, whenever a fiduciary 

relationship exists between parties, the existence of one or 

more transactions which benefit the party who owes a fiduciary 

duty to the other shifts the burden of proving the bona fides 

of the transaction to the party owing the duty. Id. at 277, 

64 S.E.2d at 817. It is not necessary that the transaction be 

accomplished directly as a result of the fiduciary 

relationship, but rather, it is the fact that "a confidential 

relationship existed between the parties at the time of the 

transaction" that gives rise to the presumption and the 

shifting of the burden of going forward with the evidence. 

Diehl v. Butts, 255 Va. 482, 489, 499 S.E.2d 833, 838 (1998); 

Friendly Ice Cream Corp., 268 Va. at 33, 597 S.E.2d at 39. 
17

From this summary of the law, it is clear that to survive 

a demurrer, a complaint seeking to set aside a contract or 

other transaction favorable to a defendant or her interests 

because of undue influence by the defendant must allege either

that because of great weakness of mind of the other party the 

defendant obtained the bargain for grossly inadequate 

consideration or under some other circumstance of suspicion, 

or alternately that a confidential relationship existed 

between the parties at the time of a transaction beneficial to 

the defendant, even in the absence of other suspicious 

circumstances. Both allegations will support a finding of 

undue influence resulting in a fraudulent transaction, and may 

be pled independently or in the alternative. 

Because the two circumstances that will suffice to allege 

undue influence are not interdependent, the capacity, or lack 

thereof, of the party allegedly defrauded by the defendant to 

conduct her own business is not relevant to establishing a 

presumption of undue influence based upon the existence of a 

confidential relationship. Likewise, the absence of an 

allegation of a confidential relationship alone would not 

defeat a claim that the undue influence arose from the 

defendant taking advantage of the other party's diminished 

capacity. In short, while it may frequently be the case that 

a claim of undue influence may be supported by allegations 
18

that the defendant both overbore the will of the other party 

through weakness of mind and also took advantage of a 

confidential relationship, in considering a demurrer to such 

claims the trial court must evaluate the sufficiency of each 

theory independently. 

Although the amended complaint in this case contains 

allegations that the defendants exercised undue influence over 

Elsie both through her diminished capacity and as a result of 

confidential relationships, it is clear that the circuit 

court's determination to grant the demurrer was premised only 

on its determination that there was no confidential 

relationship between Elsie and Toni. The court concluded that 

because the transactions were conducted by Elsie personally, 

or by Toni as a joint account holder, no confidential 

relationship between Elsie and Toni arose by virtue of the 

DPOA, which in the court's view precluded any presumption of 

undue influence. Without elaborating further, the court 

summarily concluded that the amended complaint also failed to 

allege facts sufficient to find that a confidential 

relationship existed between Elsie and either Bruce or Audrey.2

 2

 The circuit court made no express ruling on whether the 

amended complaint adequately pled facts to support a finding 

that one or more of the defendants exercised undue influence 

over Elsie because of her weakness of mind in obtaining a 

benefit for inadequate consideration or under other suspicious 

circumstances, and neither party has addressed that issue in 
19

Ayres' and Riley's first assignment of error challenges 

the circuit court's ruling that there was no confidential 

relationship between Elsie and Toni because the transactions 

at issue did not require Toni to exercise her powers under the 

DPOA. Unquestionably, the amended complaint pleads that Toni 

was in a position of trust and exercised habitual influence 

over Elsie, as evidenced by Elsie having entrusted the 

management of her property and affairs to Toni though the 

DPOA, such that a confidential relationship existed between 

Elsie and Toni. Contrary to the court's ruling and the 

position urged by the defendants below and in this appeal, it 

was not necessary under the allegations of the amended 

complaint for Toni to have exercised her authority under the 

DPOA to accomplish the transactions that benefited her or 

others close to her for the presumption of undue influence to 

apply. Accordingly, we hold that the circuit court erred in 

ruling that no confidential relationship could arise between 

Elsie and Toni solely because Toni may not have exercised her 

powers under the DPOA with respect to the challenged 

transactions. 

 

this appeal. Accordingly, we express no opinion on whether 

the amended complaint would have supported a cause of action 

based on the alternate method of proving undue influence. 
20

We now consider the issue raised by Ayers and Riley in 

their second assignment of error challenging the sustaining of 

the demurrer as to Counts 1, 2 and 3. In each of these 

counts, the amended complaint alleges that a confidential 

relationship existed between Elsie and Audrey, Toni, and Bruce 

respectively because they were each parties to a joint account 

with Elsie for which she provided all the assets. 

Code § 6.2-619(A) provides that "[p]arties to a joint 

account in a financial institution occupy the relation of 

principal and agent as to each other, with each standing as a 

principal in regard to his ownership interest in the joint 

account and as agent in regard to the ownership interest of 

the other party." In Parfitt we explained that where, as in 

this case, a joint account is established between two parties 

under which all the assets are contributed by one party, the 

second party becomes "an agent with regard to the entire 

account. By statute, a confidential relationship was 

established creating a fiduciary duty [and] a presumption that 

the self-dealing transactions were unduly obtained." 277 Va. 

at 342, 672 S.E.2d at 830 (internal citations and quotation 

marks omitted). Under such circumstances, it need not be 

alleged or proven that the defendant procured the creation of 

the joint account by undue influence. Rather, the existence 

of the account itself imposes a fiduciary duty on the 
21

defendant and with regard to a subsequent transaction creates 

the presumption of undue influence which shifts to the 

defendant the burden of proving the bona fides of the 

transaction. Id.; Nicholson, 192 Va. at 277, 64 S.E.2d at 

817. 

Because the amended complaint alleges that Audrey, Toni, 

and Bruce were each made co-owners of one or more accounts 

with Elsie for which Elsie provided all the funds, under Code 

§ 6.2-619(A) a confidential relationship existed between each 

of the three and Elise as a matter of law with respect to 

those accounts, and the burden would fall upon each of them to 

rebut the presumption that the transactions were the result of 

undue influence.3

 Accordingly, we hold that the circuit court 

erred in sustaining the demurrer as to Counts 1, 2 and 3. 

In their third assignment of error, Ayers and Riley 

challenge the circuit court's sustaining the demurrer as to 

 3

 Because this case was decided on a demurrer, we are not 

here concerned with what quantum of evidence the defendants 

would need to present to rebut the presumption of fraud 

arising from the statutorily-imposed confidential relationship 

between joint owners of an account. Indeed, it is selfevident that such evidence will be case specific and, thus, 

should be decided by a trier-of-fact on evidence adduced at 

trial. It is also self-evident, however, that these 

transactions clearly reduced Elsie's estate, that neither Toni 

nor Bruce are legatees under Elsie's will, and that, as she is 

a residuary legatee under the will, Audrey's share of the 

estate could be increased if funds were to be recovered for 

the estate as a result of this litigation. 
22

Counts 4, 5 and 6, which respectively asserted that Toni, 

Bruce and Audrey each had a confidential relationship with 

Elsie apart from that implied by the creation of the joint 

accounts. We have already determined that the court erred in 

finding that no confidential relationship arose between Toni 

and Elsie because of the DPOA. Moreover, even without the 

existence of the DPOA, the amended complaint contains 

allegations that would support a finding that a confidential 

relationship developed between Elsie and Toni. Specifically, 

it is alleged that Elsie was "dependent on Toni . . . for both 

physical and mental/intellectual assistance" calling upon her 

both day and night. Likewise, in Count 5, the complaint 

alleges that "[e]ven without the confidential relationship 

arising . . . from the multi-owner bank account, a 

confidential relationship existed between [Elsie] and . . . 

Bruce . . . because of the aid Mr. and Mrs. Smith needed and 

requested" from him. 

A confidential relationship will not necessarily arise in 

every case where a person requests or receives regular aid 

from another. Nonetheless, when the amended complaint is 

viewed as a whole, it is clear that Elsie was alleged to have 

relied almost exclusively on Toni and Bruce to maintain her 

property and for most of her daily needs and activities until 

October 2007, and a reasonable inference can be made that 
23

Elsie was dependent on Toni and Bruce to such an extent that a 

confidential relationship existed between them. Given the 

standard of review applicable to a demurrer, we hold that the 

circuit court erred in sustaining the demurrer as to Counts 4 

and 5. 

With respect to Audrey, the amended complaint alleges in 

Count 6 that a confidential relationship between her and Elsie 

was demonstrated by the fact that Audrey "collaborated with 

Toni Shaffer in the handling of [Elsie]'s financial affairs, 

and especially in the process of persuading [Elsie] to sign 

documents to accomplish many of the . . . transactions which 

Toni Shaffer proposed, advised, or persuaded [Elsie] to 

participate in," and that when Elsie was accompanied by Audrey 

to the banks to conduct these transactions, "[s]he was 

completely under the influence of, and dependent upon Toni 

Shaffer and/or her sister, Audrey Wingo. This was especially 

true in regard to the management of her financial affairs." 

Additionally, there are allegations that the familial 

relationship between Elsie and Audrey was of a confidential 

nature "especially after certain events caused [Elsie] to 

distrust her granddaughter (Plaintiffs' mother)." 

While these allegations are less specific than those 

concerning Toni and Bruce, they nonetheless constitute facts 

and reasonable inferences which, taken as true, give rise to 
24

the existence of a confidential relationship and the 

consequent presumption of undue influence upon Elsie in those 

transactions that benefited Audrey. Accordingly, we hold that 

the circuit court erred in sustaining the demurrer to the 

amended complaint with respect to Count 6.4

CONCLUSION 

For these reasons, we will affirm the judgment of the 

circuit court sustaining the demurrer to the amended complaint 

as to Counts 7, 8, 9, 10 and 11, and the dismissal of Michael 

T. Shaffer as a defendant. We will reverse the judgment of 

the circuit court sustaining the demurrer to the amended 

complaint as to Counts 1, 2, 3, 4, 5 and 6, and remand the 

case to the circuit court for further proceedings consistent 

with the views expressed in this opinion. 

 4

 We will briefly address an issue raised by Ayers' and 

Riley's fourth assignment of error. As framed, this 

assignment of error asserts that the circuit court erred in 

determining that Toni was entitled to reimbursement of her 

costs in defending the suit as executrix of the estate. Ayers 

and Riley contend that this was error because the suit was 

filed against Toni only in her personal capacity. While the 

court stated from the bench that it would allow reimbursement 

of costs incurred by Toni on behalf of the estate, neither the 

final order nor any other order entered by the court 

memorialized an award of costs and, thus, there is no ruling 

on this issue to review. However, because we will remand the 

case for further proceedings, the court may revisit the 

question of whether Toni is entitled to reimbursement of any 

costs of this litigation if they were incurred in her capacity 

as executrix. 
25

Affirmed in part, 

reversed in part, 

and remanded.