Close this search box.

Virginia Woman’s Gift of Home Not Changed By Later Will

Print Article


It frequently happens that elderly individuals are encouraged to give away all of their property to family members or others. Often, the expectation is that the recipient will “take care of” the elderly person, and distribute the property according to their wishes upon death. The senior is usually encouraged to make the transfers to avoid the probate process, to make it easier to qualify for Medicaid benefits, or both. It may happen that the recipients of such transfers do carry out the senior’s wishes, but legal proceedings may be required to sort out what those wishes truly were.

Mary Mosby lived in Virginia, where she owned her own home. She and her second husband had signed wills leaving half their property to her son and half to his son. Mr. Mosby had died in 1994.

At the time of Mr. Mosby’s death, Mrs. Mosby was told by a hospital social worker that she should transfer her home and a bank certificate of deposit into her stepson’s name so that her husband might qualify for Medicaid coverage. The transfer was not completed before his death, but a week after his funeral Mrs. Mosby signed a deed conveying the house to her stepson and placed his name on the certificate of deposit. At the time she told her stepson that she was taking these steps so that he could “look out for her later in life.”

Although the stepson understood that he was to transfer half of her assets to her son upon her death, no document confirming that understanding was ever prepared. In fact, Mrs. Mosby and her son continued to live in the house for the rest of her life.

Eight months after transferring the house to her stepson, Mrs. Mosby signed a new will. This will left her son a life estate in the property, but upon his death everything would go to her brother. A little less than a year later, she signed yet another will, this time leaving half of her estate to her son and the other half to a neighbor. Neither will left anything to her stepson, who she had apparently decided was no longer deserving because he “doesn’t do a damn thing for me.”

When Mrs. Mosby died two months after the last version of her will, the neighbors brought an action to set aside the transfer of the property into the stepson’s name. They argued that she had misunderstood the import of the deed, and that her stepson had coerced her into signing the deed and changing title on the certificate of deposit.

The Virginia Supreme Court disagreed. The justices noted that there is a presumption that a competent person understands the meaning of a document as plain as a deed to property, and that the burden was on the neighbors to overcome that presumption. Furthermore, reasoned the justices, Mrs. Mosby’s intent had been to qualify for future Medicaid benefits, and it was not possible to say that she had been coerced into signing the deed.

Although the court suggests the stepson may owe a duty to Mrs. Mosby’s son, her neighbors received nothing from her will. Whatever Mrs. Mosby’s intent might have been at the time of signing the deed, the transfer turned out to be irrevocable. Ayers v. Mosby, September 18, 1998.

Arizona might well have reached a different result. Under Arizona law, Mrs. Mosby’s stepson probably would be found to have held a position of trust and confidence, which would have created a presumption that the transfer was invalid.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.