Jones v. Brandt
645 S.E.2d 312
Supreme Court of Virginia.
Sharon D. JONES, et al.
Renee S. BRANDT, Executrix of the Estate of Warren Dean Davis, Sr.,
Deceased.
Record No. 061086.
will sought the aid and direction of the Circuit Court of the City of Virginia
Beach regarding the distribution of an estate. The sole issue is whether the
circuit court erred in finding that an attorney-in-fact had the authority, by
The material facts are undisputed. W. Leigh Ansell (Ansell), an attorney
acknowledged the document on April 8, 2004. The power of attorney
contains very broad powers, including the power to make gifts, but lacks a
specific grant of power to make a change of beneficiaries of the principal’s
certificates of deposit.
Davis’ son, were his two daughters, Sharon D. Jones and Jody Ann
Renee S. Brandt (Brandt), a widow, lived with Davis from 2002 until his
death on September 30, 2004. Davis was in failing health during his last
Davis.FN1 Davis, who personally handled his own estate planning, told
FN1. Jody Ann Davis appeared in this suit as Jody Davis Clark.
On August 4, 2004, Davis orally directed Ansell to designate Brandt as the
Va.,2007
a POD designation, signing it “Warren Dean Davis, Sr. by: W.L. Ansell,
POA.” The certificate of deposit previously had named no beneficiary other
than Davis, its owner. The next day, Ansell advised Davis by letter, which
included a copy of the beneficiary designation, that he had complied with
Davis’ direction.
individually. We awarded this interlocutory appeal to Davis’ daughters,
Sharon Jones and Jody Clark.
DISCUSSION
[1] Link to KeyCite Notes Because the sole issue on appeal is the legal
effect of a written document, we review the issue de novo. Perel v.
3. To sign, endorse or assign any note, check or other instrument of any
nature whatsoever, negotiable or non-negotiable, for deposit, discount,
collection or otherwise;
4. To open accounts, make deposits, write checks upon or otherwise
withdraw some or all funds or account balances now or hereafter
such instructions;
.…
13. To make, sign, acknowledge and deliver any contract, deed or other
document relating to real estate or personal property or both and to
perform any contract binding either me or my attorney;
construed to accomplish this intention.
25. Without limiting the above powers, generally to perform any other acts
of any nature whatsoever, that ought to be done or in the opinion of my
attorney ought to be done, in any circumstances as fully and effectively as
I could do as part of my normal, everyday business affairs if acting
his principal’s personal property. The beneficiary designation of the
certificate of deposit in question did not become a final disposition of Davis’
certificate until his death on September 30, 2004 and conveyed no present
interest in the certificate, but only at best an expectancy. Consequently,
neither Estate of Casey v. Commissioner, 948 F.2d 895 (4th Cir.1991),
the provisions of the power of attorney sufficient to authorize Ansell to act
in accord with Davis’ direction to Ansell with regard to designating Brandt
as the beneficiary of Davis’ certificate of deposit. Nevertheless, the
appellants assert that without express language in the power of attorney
granting Ansell the authority “to change the beneficiary of the certificate of
terms in which it is expressed. Hotchkiss v. Middlekauf, 96 Va. 649, 653,
32 S.E. 36, 37-38 (1899).
[5] Link to KeyCite Notes This general rule of construction essentially
provides that expansive language, such as that contained in paragraphs
24 and 25 of the power of attorney in this case, should be interpreted as
which by its nature remains in effect after the principal has become
incapable of monitoring the agent’s conduct. We do not retreat from the
rationale of these guidelines of construction.
However, in this case we are not concerned with the power to make a gift
or to transfer the principal’s property but, rather, the power to contract on
and deliver any contract … or other document relating to … personal
property.” A certificate of deposit including the designation of the
beneficiary POD thereon is a contract between the depositor and the bank
relating to personal property.
It is highly doubtful that every power of attorney, even as in this case one
is the case here as evidenced by the language in paragraph 25, stating
that “[w]ithout limiting the above powers, generally to perform any other
acts of any nature whatsoever, … in any circumstances as fully and
effectively as I could do as part of my normal, everyday business affairs if
acting personally.” Surely, the change of a beneficiary designation on a
expressed the intent to authorize Ansell, the attorney-in-fact, to make a
change in the beneficiary designation under the provisions of paragraphs
3, 13, and 25 of the power of attorney when those provisions are
considered in concert.
The appellants place considerable weight on the fact that paragraph 21 of
course, all of these enumerated financial instruments or arrangements are
entirely distinct financial matters from a certificate of deposit. Thus, it is a
reasonable assumption that Davis felt it necessary to expressly address
his intent with regard to them, while operating under the equally
reasonable assumption that his intentions were adequately addressed in
Accordingly, the judgment of the circuit court will be affirmed.FN2
FN2. Although not addressed by the circuit court or raised by the parties in
this appeal, we note that the doctrine of ratification would apply on the
facts of this case even if the language of the power of attorney was not
sufficiently specific to have permitted Ansell to make the change in
a POD designation, signing it “Warren Dean Davis, Sr. by: W.L. Ansell,
POA.” The certificate of deposit previously had named no beneficiary other
than Davis, its owner. The next day, Ansell advised Davis by letter, which
included a copy of the beneficiary designation, that he had complied with
Davis’ direction.
individually. We awarded this interlocutory appeal to Davis’ daughters,
Sharon Jones and Jody Clark.
DISCUSSION
[1] Link to KeyCite Notes Because the sole issue on appeal is the legal
effect of a written document, we review the issue de novo. Perel v.
3. To sign, endorse or assign any note, check or other instrument of any
nature whatsoever, negotiable or non-negotiable, for deposit, discount,
collection or otherwise;
4. To open accounts, make deposits, write checks upon or otherwise
withdraw some or all funds or account balances now or hereafter
such instructions;
.…
13. To make, sign, acknowledge and deliver any contract, deed or other
document relating to real estate or personal property or both and to
perform any contract binding either me or my attorney;
construed to accomplish this intention.
25. Without limiting the above powers, generally to perform any other acts
of any nature whatsoever, that ought to be done or in the opinion of my
attorney ought to be done, in any circumstances as fully and effectively as
I could do as part of my normal, everyday business affairs if acting
his principal’s personal property. The beneficiary designation of the
certificate of deposit in question did not become a final disposition of Davis’
certificate until his death on September 30, 2004 and conveyed no present
interest in the certificate, but only at best an expectancy. Consequently,
neither Estate of Casey v. Commissioner, 948 F.2d 895 (4th Cir.1991),
the provisions of the power of attorney sufficient to authorize Ansell to act
in accord with Davis’ direction to Ansell with regard to designating Brandt
as the beneficiary of Davis’ certificate of deposit. Nevertheless, the
appellants assert that without express language in the power of attorney
granting Ansell the authority “to change the beneficiary of the certificate of
terms in which it is expressed. Hotchkiss v. Middlekauf, 96 Va. 649, 653,
32 S.E. 36, 37-38 (1899).
[5] Link to KeyCite Notes This general rule of construction essentially
provides that expansive language, such as that contained in paragraphs
24 and 25 of the power of attorney in this case, should be interpreted as
which by its nature remains in effect after the principal has become
incapable of monitoring the agent’s conduct. We do not retreat from the
rationale of these guidelines of construction.
However, in this case we are not concerned with the power to make a gift
or to transfer the principal’s property but, rather, the power to contract on
and deliver any contract … or other document relating to … personal
property.” A certificate of deposit including the designation of the
beneficiary POD thereon is a contract between the depositor and the bank
relating to personal property.
It is highly doubtful that every power of attorney, even as in this case one
is the case here as evidenced by the language in paragraph 25, stating
that “[w]ithout limiting the above powers, generally to perform any other
acts of any nature whatsoever, … in any circumstances as fully and
effectively as I could do as part of my normal, everyday business affairs if
acting personally.” Surely, the change of a beneficiary designation on a
expressed the intent to authorize Ansell, the attorney-in-fact, to make a
change in the beneficiary designation under the provisions of paragraphs
3, 13, and 25 of the power of attorney when those provisions are
considered in concert.
The appellants place considerable weight on the fact that paragraph 21 of
course, all of these enumerated financial instruments or arrangements are
entirely distinct financial matters from a certificate of deposit. Thus, it is a
reasonable assumption that Davis felt it necessary to expressly address
his intent with regard to them, while operating under the equally
reasonable assumption that his intentions were adequately addressed in
Accordingly, the judgment of the circuit court will be affirmed.FN2
FN2. Although not addressed by the circuit court or raised by the parties in
this appeal, we note that the doctrine of ratification would apply on the
facts of this case even if the language of the power of attorney was not
sufficiently specific to have permitted Ansell to make the change in