724 S.E.2d 695
Va.2012Background
- Keith and Lulofs are step-siblings with a shared history through Arvid and Lucy; the 1987 mirror wills left everything to the surviving spouse and then to Keith and Lulofs equally.
- Arvid died in 1996; his estate passed to Lucy under the 1987 will, after which Lucy executed a new 1996 will leaving all to Lulofs.
- Lucy died in 2006; Keith challenged Lucy’s probate of the 1996 will.
- An insurance policy (1994 policy naming Keith and Lulofs as 50/50 primary beneficiaries) later changed: 1996 policy to Keith 22% and Lulofs 78%, then 1996 to Lulofs 100%.
- Keith testified that Arvid and Lucy intended reciprocal, irrevocable wills; Lulofs testified about discussions but not specifics; the drafting attorney had no recollection of the wills.
- Trial court found the 1987 wills were mutual and reciprocal but not proven irrevocable; held Lucy’s 1996 will valid for probate; Keith appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1987 wills created an irrevocable contract. | Keith argues mirror wills show a binding irrevocable contract. | Lulofs contends no clear contract evidenced by language or corroboration. | No; mirror language alone insufficient to prove irrevocable contract. |
| Whether Keith's testimony was adequately corroborated under the Dead Man's Statute. | Keith's testimony, with some circumstantial support, proves contractual intent. | There is no independent corroboration; insurance policy and witness testimony insufficient. | No corroboration; Dead Man's Statute bars judgment on uncorroborated testimony. |
Key Cases Cited
- Salley v. Burns, 220 Va. 123 (1979) (distinguishes contract vs. will; requires clear evidence of contract when a will mirrors another)
- Black v. Edwards, 248 Va. 90 (1994) (reciprocal wills can be irrevocable contracts when supported by clear testimony of intent)
- Williams v. Williams, 123 Va. 643 (1918) (wills are generally revocable; mirror wills do not automatically create contracts)
- Salley v. Burns (Salley cited for contract analysis), 220 Va. 133 (1979) (illustrates insufficient evidence to form binding contract without clear intent)
- Salley v. Burns (Salley cited for contract analysis), 255 S.E.2d 512 (1979) (provides framework for proving contractual nature of reciprocal provisions)
- Smith v. Trustees of the Baptist Orphanage, 194 Va. 901 (1953) (principles on testamentary dispositions and intent)
- Virginia Home for Boys & Girls v. Phillips, 279 Va. 279 (2010) (dead man’s statute and corroboration standards)