Idaho Supreme Court

The Idaho Supreme Court building in Boise.

The Idaho Supreme Court on Monday upheld a lower court’s ruling that a Boise attorney exercised “undue influence” over his elderly mother when he served as sole witness for a will leaving all her assets to him — cutting out his sister and brother.

Victoria H. Smith, who died in 2013 at nearly 100 years old, and her late husband had real estate holdings and other assets estimated at between $1 million and $27 million, according to the high court’s decision.

Smith made her will in 1990. In 1999, she granted power of attorney to her son, Vernon K. Smith, and after a fall in 2008, granted a more far-reaching set of legal powers to him. The son drafted both documents. He then used those powers in 2012 to transfer all his mother’s assets to himself.

“At the time of the will’s execution, Vernon had been acting as Victoria’s lawyer for nearly twenty years,” according to the court decision. “When the will was signed, Vernon was the only other person present. The record does not show that Victoria received independent or disinterested advice prior to the will’s creation.”

Senior 4th District Judge Cheri Copsey, presiding as a magistrate judge, ruled after a two-day bench trial in 2016 that “Victoria’s will was a product of Vernon’s undue influence.” The Idaho Supreme Court unanimously upheld her ruling.

According to the court decision, on July 3, 2012, the son formed a limited liability company called VHS Properties, LLC; VHS was his mother’s initials. He named his mother and himself as the only members of the company. The next day, he used the 2008 power of attorney to transfer all of his mother’s real and personal property to the new firm. Then, he transferred all his mother’s interest in the firm to himself.

“By the end of the day on July 4, 2012, Vernon had exclusive ownership and control of all of Victoria’s assets,” wrote Justice Robyn Brody in Monday’s ruling.

After the mother’s death, Joseph H. Smith challenged the three-sentence 1990 will that his mother had hand-written and signed, leaving everything she owned to his brother, Vernon Smith. The will stated that she had made gifts during her lifetime to her two other children, Joseph Smith and Victoria Converse.

Vernon Smith, an attorney, had managed his mother’s legal and business affairs from the time he was licensed to practice law in 1971 until her death, according to the court ruling.

Joseph Smith succeeded in contesting the will in magistrate court in Ada County. The court also ruled that the power of attorney granted to Vernon K. Smith by his mother didn’t authorize him to make gifts of her assets — and it ruled that the transfer of her assets to VHS Properties was a gift. In those transactions, Vernon Smith signed on behalf of his mother.

The lower court then ordered Vernon Smith to account for the assets that had been transferred, saying they “appeared to be dissipating,” and ordered supervision of the estate to ensure its assets were preserved.

Vernon Smith appealed to the Idaho Supreme Court on an array of grounds, from jurisdiction and standing to the definition of gifts; the high court rejected them all.

Attorneys for both sides in the appeal didn’t respond to requests for comment on Monday.

The Idaho State Bar confirmed that as of Monday, Vernon K. Smith was listed as an active member of the bar.

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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