Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and 

Agee, JJ., and Russell, S.J. 

GILBERT R. BAILEY OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 060713 January 12, 2007 

LINDA D. TURNBOW, EXECUTRIX 

OF THE ESTATE OF ANNERBELL BREWER 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Russell I. Townsend, Jr., Judge Designate 

 In this case, the chancellor held that a deed to real 

property had been procured by undue influence and set the deed 

aside. That holding was premised upon the chancellor’s 

finding that a confidential relationship existed between the 

grantor and the grantee, giving rise to a presumption of undue 

influence, which the grantee had failed to rebut. This appeal 

questions the sufficiency of the evidence to support that 

finding. 

Facts and Proceedings

 In accordance with familiar principles, the pertinent 

facts will be stated in the light most favorable to the party 

prevailing at trial, Linda D. Turnbow, the Executrix of the 

Estate of Annerbell M. Brewer. Annerbell M. Brewer was a 

widow who had lived alone in her home in the City of 

Chesapeake after her husband’s death in 1989. She had no 

children, but had twelve nieces and nephews. Two of these 

resided near her and helped her in various ways during her 
2

widowhood. Her niece, Mary B. Crawford, handled her financial 

affairs from 1993 until Mrs. Brewer’s death. Mrs. Crawford 

arranged for the services of caregivers for her aunt, ensured 

that her bills were paid, balanced her checkbooks and, in the 

last year of Mrs. Brewer’s life, maintained a joint checking 

account with her. Mrs. Crawford’s husband testified that his 

wife spent the majority of her time in looking after Mrs. 

Brewer’s business affairs in the year before she died. On 

several occasions while recuperating from serious illnesses, 

Mrs. Brewer temporarily lived with the Crawfords until she was 

well enough to return home. 

 Mrs. Brewer also had a close relationship with a nephew, 

Gilbert R. Bailey, who was a builder and developer. Bailey 

had been close to his aunt as a child. Mrs. Brewer and her 

husband had bought a house from Bailey’s parents and later 

exchanged it for a piece of land Bailey owned, on which Bailey 

built a house for the Brewers in 1963. Mrs. Brewer still 

lived in that house at the time of her death. That property 

is the subject of this suit. Bailey “kept the repairs up on 

the house” and Mrs. Brewer became dependent upon him for 

transportation in her later years. There is no evidence, 

however, that she relied on him for any advice or assistance 

with regard to her business or financial affairs. 
3

 In 1989, Mrs. Brewer executed her last will in which, 

after two legacies, she left the residue of her property to 

her husband and, if he should not survive her, to her twelve 

named nieces and nephews in equal shares. The will named one 

of the nieces, Linda Dee Turnbow, as executrix if Mrs. 

Brewer’s husband should not survive her. Mr. Brewer died soon 

after the will was executed. 

 On June 14, 1997, Mrs. Brewer “signed herself into [a] 

nursing home for 30 days.” She was then 82 years old. She 

stayed nearly two months, but often went home with Ann Bailey, 

Gilbert Bailey’s wife, during the day, returning to the 

nursing home at night. On about August 7, 1997, Mrs. Brewer 

called Ann Bailey and said that she was “signing herself out” 

of the nursing home and “wanted to come home.” Ann Bailey 

sent an employee to pick Mrs. Brewer up and take her home. 

Thereafter, Mrs. Brewer spent some nights in the Bailey home 

and some nights in her own home, but during the last month of 

her life resided primarily with the Baileys. During that 

time, Ann Bailey helped her with such physical needs as meals, 

seeing to her medications and helping her to bathe. Mary 

Crawford, however, continued to handle her financial affairs. 

Mrs. Brewer died on October 15, 1997. 

 Soon after she had left the nursing home, Mrs. Brewer 

went with Gilbert Bailey to the office of the Department of 
4

Motor Vehicles and transferred the title of her automobile to 

the joint ownership of herself and Bailey. Later, she told 

Bailey that she wanted to transfer the title of her house to 

him as well. He testified that she said that “she wanted to 

do her house just like she’d done the car so that she would 

have it, and then at her death, I would own it.” Bailey 

testified that he asked her several times thereafter if she 

was sure that was what she wanted to do and she said “that’s 

what she wanted.” She explained that she wanted the house to 

remain in the family, and that she wanted Bailey to keep it 

and ultimately pass it on to his young grandson. 

 Bailey consulted his attorney, who prepared a deed of 

gift, conveying Mrs. Brewer’s property to Gilbert Bailey in 

fee simple, but reserving a life estate in Mrs. Brewer. 

Bailey picked up the deed from the attorney’s office and took 

it to his home. On September 4, 1997, Mrs. Brewer came into 

the house after a drive with Ann Bailey and asked him whether 

he had the deed. He showed it to her, read it in full to her, 

and asked her if it was what she wanted. She replied that it 

was “exactly what she wanted” and signed it in the presence of 

a notary public who was employed by the Baileys and was 

working in the office they maintained in the basement of their 

home. Bailey subsequently had the deed recorded. 
5

 After Mrs. Brewer’s death, Linda Dee Turnbow qualified as 

executrix under Mrs. Brewer’s will and filed this suit against 

Gilbert Bailey. Her bill of complaint asked that the deed be 

set aside and alleged undue influence, fraud, “intentional 

interference with inheritance,” unjust enrichment, decedent’s 

lack of mental capacity, conspiracy and forgery. The 

chancellor sustained a demurrer to the count alleging 

“intentional interference with inheritance” on the ground that 

no such cause of action exists in Virginia. 

 The chancellor heard the evidence ore tenus at a five-day 

trial, took the case under advisement and filed a letter 

opinion dismissing all the Executrix’ claims except undue 

influence. The chancellor ruled that the complainant had 

failed to carry her burden of proving forgery, that there was 

no credible evidence that Mrs. Brewer was mentally 

incapacitated in any way, and that the evidence did not 

support the Executrix’ allegations of fraud, unjust enrichment 

or conspiracy. The chancellor further held that the Executrix 

had failed to prove undue influence with respect to the 

transfer of title to Mrs. Brewer's motor vehicle. The 

chancellor ruled, however, that the Executrix had carried her 

burden to prove a confidential relationship between Bailey and 

Mrs. Brewer giving rise to a presumption of undue influence, 

which Bailey had failed to rebut, in the procurement of the 
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challenged deed. The chancellor entered a final decree 

setting aside and canceling the deed. We awarded Bailey an 

appeal. 

Analysis

 Applying familiar principles of appellate review, we will 

accept the chancellor’s findings of fact unless they are 

plainly wrong or without evidence to support them. Friendly 

Ice Cream Corp. v. Beckner, 268 Va. 23, 33, 597 S.E.2d 34, 39 

(2004). In that case, we restated the principles of law 

applicable 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: 

 [W]here great weakness of mind concurs with 

gross inadequacy of consideration, or 

circumstances of suspicion, the transaction 
7

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. 

Id. at 31-32, 597 S.E.2d at 38-39 (internal citations 

omitted. 

 Because the chancellor found no evidence to support 

a finding of weakness of mind on Mrs. Brewer’s part, his 

holding must rest entirely upon the second condition 

discussed by Fishburne: the existence of a “confidential 

relationship” between the parties to the deed. Although 

the law in other jurisdictions differs, in Virginia we 

have adhered to the view that a close family 

relationship, even the relationship of parent and child, 

will not, alone, give rise to a confidential relationship 

creating a presumption of undue influence. Nuckols v. 

Nuckols, 228 Va. 25, 36-37, 320 S.E.2d 734, 740 (1984). 

Instead, for the presumption to arise, the party 

asserting it must establish, by clear and convincing 
8

evidence, an agency relationship in which one party is 

bound to act for the benefit of another and can take no 

advantage to himself,∗

 or between family members when one 

member bears also an attorney-client relationship to 

another member, or "when one family member provides 

financial advice or handles the finances of another 

family member." Friendly Ice Cream Corp., 268 Va. at 34, 

597 S.E.2d at 40 (emphasis added). See also

Economopoulos v. Kolaitis, 259 Va. 806, 812-13, 528 

S.E.2d 714, 718 (2000). 

 Tested by that standard, the evidence in the present 

case is insufficient to support the chancellor’s finding. 

The only evidence of financial advice or assistance to 

Mrs. Brewer by a family member was that given by Mary 

Crawford, not by Bailey. The chancellor expressly found 

that the transfer of title to Mrs. Brewer’s car was free 

of undue influence. The only other business relationship 

between the parties to the deed shown by the evidence was 

the exchange of lands between them in 1963 and Bailey’s 

construction of the Brewers’ home. There was no evidence 

 ∗

 The Executrix did not allege or prove an attorney-client 

or agency relationship between the parties to the deed and the 

chancellor made no such finding. Accordingly, we confine our 

holding to the chancellor’s finding that a confidential 

relationship had been shown. 
9

indicating that to have been anything other than an armslength business transaction. A mere commercial 

relationship, even where the parties like and trust each 

other, is insufficient to establish a confidential 

relationship. Friendly Ice Cream Corp., 268 Va. at 34-

35, 597 S.E.2d at 40. Because the complainant failed to 

present evidence sufficient to establish a confidential 

relationship, no presumption of undue influence arose to 

shift the burden of production to Bailey. 

Conclusion

 Because we find the chancellor’s decision to be 

unsupported by the evidence, we will reverse the decree 

appealed from and enter final judgment in favor of 

Bailey. 

Reversed and final judgment.