Valerie Jane Poe, as Administratrix of the Estate of Dorothy Louise Poe v. James W. Taylor

1
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
VALERIE JANE POE, AS ADMINISTRATRIX
OF THE ESTATE OF DOROTHY LOUISE POE,
Plaintiff Below, Petitioner
v.) No. 25-ICA-45 (Cir. Ct. Kanawha Cnty. Case No. CC-20-2023-C-1089)
JAMES W. TAYLOR,
Defendant Below, Respondent
MEMORANDUM DECISION
In this appeal, Petitioner Valerie Jane Poe (“Petitioner”), as Administratrix of the
Estate of Dorothy Louise Poe, argues that she should be permitted to recover assets from
her sister-in-law’s estate that were previously distributed under the laws of intestate
succession to the legal heirs, including Respondent, James W. Taylor (“Mr. Taylor”), and
redistribute them according to a recently discovered will. On January 2, 2025, the Circuit
Court of Kanawha County dismissed Petitioner’s lawsuit seeking to enforce the will,
finding that it was untimely. On appeal, Mr. Taylor filed a brief in support of the circuit
court’s order.1 Petitioner filed a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the circuit court’s order but no
substantial question of law. For the reasons set forth below, a memorandum decision
reversing and remanding for further proceedings is appropriate under Rule 21 of the West
Virginia Rules of Appellate Procedure.
Dorothy Louise Poe (“Ms. Poe”), a resident of Kanawha County, West Virginia,
died on September 3, 2021, without a known will.2 On October 7, 2021, the County
Commission of Kanawha County (“County Commission”) entered an order opening Ms.
1 Petitioner is represented by John J. Brewster, Esq., and Christopher J. Winton, Esq.
Mr. Taylor is represented by Andrew L. Ellis, Esq., and Mary G. Williams, Esq.
2 The factual background is based on the allegations in Petitioner’s complaint. As
Petitioner’s claims were dismissed for failure to state a claim under Rule 12(b)(6) of the
West Virginia Rules of Civil Procedure, the allegations in her complaint are taken as true.
See Syl. Pt. 1, Wiggins v. E. Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987).
FILED
October 31, 2025
released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

2
Poe’s intestate estate and appointing one of her heirs at law, Mr. Taylor, as the
administrator. On May 19, 2022, the Fiduciary Supervisor filed The First and Final
Settlement Report and Report of Claims for the Estate of Dorothy Louise Poe with the
County Commission. Mr. Taylor then distributed Ms. Poe’s $1,304,622.38 intestate estate
equally between her eight heirs, who were the children of her siblings.
In April 2023, Petitioner, whose late husband was Ms. Poe’s husband’s brother,
discovered a document among her husband’s files purporting to be the Last Will and
Testament of Dorothy Louise Poe (“the Will”). The Will was dated November 14, 2008.
Under the terms of the Will, Ms. Poe devised a one-seventh share of her estate to each of
her siblings and her husband’s siblings. For a devisee who predeceased Ms. Poe, his or her
share was to be divided per stirpes between his or her surviving children.3 Under these
terms, seven of Ms. Poe’s heirs would receive smaller shares of her estate than they
received through intestate succession: Mr. Taylor, Eugenia Colleen Toussant, Colletta Kay
Carr, Steven Nelson Darrah, Sheri Ann Blile, Nolon R. Taylor, and Susan R. Penland.
Petitioner submitted the Will to the Fiduciary Supervisor of the County Commission on
June 27, 2023. On August 30, 2023, the County Commission admitted the Will to probate.
Petitioner filed the underlying complaint on December 14, 2023, against Ms. Poe’s
seven intestate heirs entitled to smaller shares of her estate under the Will than they had
previously received via intestate succession.4 Petitioner raised two claims in the complaint:
1) “Enforcement of Will and Recovery of Property of the Estate” and 2) Unjust
Enrichment. Essentially, Petitioner sought to recover the difference between the amount
each defendant received via intestate succession and the amount he or she was entitled to
under the Will, so that Petitioner could redistribute Ms. Poe’s estate according to the Will’s
terms. On January 16, 2024, Mr. Taylor filed a motion to dismiss Petitioner’s complaint
pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, asserting that the
closure of Ms. Poe’s intestate estate barred enforcement of the Will. The parties briefed the
motion, and in a reply and supplemental memorandum in support of the motion, Mr. Taylor
raised the six-month statute of limitations set forth in West Virginia Code § 41-5-11.
On January 2, 2025, the circuit court entered an order granting Mr. Taylor’s motion
to dismiss. The circuit court specifically determined that the Petitioner’s complaint was
untimely under the six-month statute of limitations set forth in West Virginia Code § 41-
5-11 for an action to impeach or establish a will. The circuit court reasoned that, because
3 For one of Ms. Poe’s sisters who was already deceased, the Will explicitly
provided that her one-seventh share was to be divided among her three children, including
Mr. Taylor.
4 Petitioner did not name Deb Shilling Pierce as a defendant because she was entitled
to a larger share of Ms. Poe’s estate under the Will than she received through intestate
succession.

3
the County Commission closed Ms. Poe’s estate on May 19, 2022, any action to establish
a will had to be filed on or before November 19, 2022. Accordingly, the circuit court
determined that Petitioner’s December 2023 complaint was time-barred and dismissed the
action with prejudice. Although the circuit court specifically granted Mr. Taylor’s motion
to dismiss, it noted that because the complaint was time-barred, the ruling necessarily
applied to all seven defendants. It is from the circuit court’s order dismissing Petitioner’s
claims that she now appeals.5
Our review of an order granting a motion to dismiss is de novo. Syl. Pt. 2, State ex
rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
Additionally, “[w]here the issue on an appeal from the circuit court is clearly a question of
law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl.
Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). On appeal of
an order dismissing a complaint under Rule 12(b)(6), the allegations of the complaint must
be taken as true. Syl. Pt. 1, Wiggins v. E. Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d
745 (1987).
In her first assignment of error on appeal, Petitioner argues that the circuit court
erred in finding that her complaint was subject to the six-month statute of limitations set
forth in West Virginia Code § 41-5-11.6 She contends that this statute only applies to
actions filed either to impeach or establish a will, and that her complaint was neither. We
agree and reverse.
West Virginia Code § 41-5-11 sets forth the procedure for a person who was not a
party to a probate proceeding to impeach a will admitted to probate or to establish the
validity of a will not admitted to probate:
After a judgment or order entered as aforesaid in a proceeding for probate ex
parte, any person interested who was not a party to the proceeding, or any
person who was not a party to a proceeding for probate in solemn form, may
proceed by complaint to impeach or establish the will, on which complaint,
5 Although the circuit court dismissed Petitioner’s complaint against all seven
named defendants, Petitioner named only Mr. Taylor as a respondent in her notice of
appeal, designating the other six defendants as non-participants. None of these non-
participants filed a notice to remain a party as permitted under Rule 5(c) of the Rules of
Appellate Procedure.
6 The Supreme Court of Appeals of West Virginia has held that the first step in
determining if a claim is time-barred is identifying the applicable statute of limitations,
which is purely a question of law. See Syl. Pt. 5, Dunn v. Rockwell, 225 W. Va. 43, 689
S.E.2d 255 (2009).

4
if required by any party, a trial by jury shall be ordered, to ascertain whether
any, and if any, how much, of what was so offered for probate, be the will of
the decedent. . . . [I]f the judgment or order was entered by the county
commission and there was no appeal therefrom, such complaint shall be filed
within six months from the date of such order of the county commission. If
no such complaint be filed within the time prescribed, the judgment or order
shall be forever binding. Any complaint filed under this section shall be in
the circuit court of the county wherein probate of the will was allowed or
denied.
W. Va. Code § 41-5-11 (1994). The Supreme Court of Appeals of West Virginia
(“SCAWV”) has held that “[t]he sole purpose of the proceedings permitted under the
provisions of [West Virginia Code §] 41–5–11, is the determination of the validity of a
challenged instrument purporting to be a will.” Syl. Pt. 3, in part, Mauzy v. Nelson, 147 W.
Va. 764, 131 S.E.2d 389 (1963). In this context, “[t]he word validity has reference only to
the validity of the probated paper as a testament, not to the validity of its provisions.”
Johnson v. Kirby, 230 W. Va. 432, 439, 739 S.E.2d 283, 290 (2013) (quoting Mauzy, 147
W. Va. at 770, 131 S.E.2d at 392). The purpose of an action to establish the validity of a
will is for the will to be accepted to probate; “[o]nce the will is established as valid, the
circuit court would then by order direct the county clerk to probate the same.” Miller v.
Robinson, 171 W. Va. 653, 655, 301 S.E.2d 610, 612 (1983).
In contrast, tort and equitable claims related to bequests in a will are not subject to
the six-month statute of limitations set forth in West Virginia Code § 41-5-11. See Barone
v. Barone, 170 W. Va. 407, 409-11, 294 S.E.2d 260, 262-64 (1982) (finding that claims
for tortious interference with a bequest and equitable fraud were not subject to the
limitations period in West Virginia Code § 41-5-11); see also Johnson, 230 W. Va. at 439,
739 S.E.2d at 290 (finding that limitations period in West Virginia Code § 41-5-11 did not
apply to claim that will had been revoked as a matter of law by divorce under West Virginia
Code § 41-1-6). Instead, such claims are “subject to laches or tort statutes of limitations.”
Barone, 170 W. Va. at 408, 294 S.E.2d at 261, Syl. Pt. 3. In her complaint below, Petitioner
did not seek to establish the validity of the Will, which was already admitted to probate.
Indeed, Mr. Taylor does not contest the Will’s validity. Instead, Petitioner sought the
equitable recovery of assets previously distributed via intestate succession.7 Therefore, the
circuit court erred in finding that the six-month statute of limitations set forth in West
Virginia Code § 41-5-11 barred Petitioner’s complaint.
7 Petitioner does not identify any statutory authority empowering a circuit court to
set aside the finalized intestate succession of an estate. Moreover, Petitioner acknowledges
in her reply brief that her complaint is entirely equitable in nature, and may be subject to
equitable defenses, including laches. At oral argument, Petitioner’s counsel similarly
conceded that the complaint is exclusively equitable. Accordingly, the unjust enrichment
claim is the only potentially viable claim in the complaint.

5
In her second assignment of error, Petitioner argues that there is no other statute of
limitations that bars a will from being admitted to probate after the testator’s estate has
already been closed after administration through intestate succession. However, as the Will
has been admitted to probate in this matter, we find that this argument is moot. In
responding to this argument, Mr. Taylor offers policy-based reasons a Will should not be
admitted to probate after the testator’s intestate estate has been closed. However, he does
not identify a statute of limitations that applies to Petitioner’s complaint based on the record
before this Court.
For the foregoing reasons, this Court reverses the Circuit Court of Kanawha
County’s January 2, 2025, order granting Mr. Taylor’s motion to dismiss on the statute of
limitations grounds set forth in the order and remands the case for further proceedings
consistent with this decision.8
Reversed and Remanded.
ISSUED: October 31, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
8 The circuit court included a few paragraphs in its dismissal order finding that
Petitioner failed to state a claim for unjust enrichment. It is not entirely clear from the order
if the circuit court intended this ruling to be independent from its ruling that the complaint
was untimely under West Virginia Code § 41-5-11. However, the circuit court’s ruling in
the conclusion of the order that “[Petitioner]’s Complaint fails to state a claim upon which
relief can be granted because it was filed outside of the applicable statute of limitations”
indicates that the statute of limitations ruling is integral to that decision.
In her opening brief, Petitioner contends that the circuit court’s ruling on the unjust
enrichment claim depends on its statute of limitations ruling and argues that the circuit
court’s order should be reversed in its entirety. Mr. Taylor does not dispute this
characterization or argue that we should affirm the circuit court’s dismissal of the unjust
enrichment claim even if we reverse the circuit court on the statute of limitations issue.
At oral argument, Petitioner’s counsel conceded that he had not located a case where
unjust enrichment or any other equitable claim accorded a remedy in similar circumstances
to this case. Nothing in this decision precludes Mr. Taylor’s continuing right to challenge
the efficacy of Petitioner’s equitable claims under the facts as they may be established
below.