Keith v. Lulofs
724 S.E.2d 695, 283 Va. 768 (2012)
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Rule of Law:
The mere existence of mutual, reciprocal wills is insufficient to prove they constitute an irrevocable contract; proof of a contractual agreement not to revoke must be established by clear and satisfactory evidence.
Facts:
- Arvid and Lucy, a married couple, each had one child from a previous marriage: Arvid's son, Keith, and Lucy's daughter, Lulofs.
- On December 9, 1987, Arvid and Lucy executed 'mirror image' wills, which provided that the estate of the first to die would pass to the surviving spouse.
- The 1987 wills further stipulated that upon the death of the surviving spouse, the combined estate would be divided equally between Keith and Lulofs.
- In 1994, Arvid and Lucy took out a joint life insurance policy, naming both Keith and Lulofs as equal 50% beneficiaries.
- Arvid died on March 21, 1996, and his entire estate passed to Lucy in accordance with his 1987 will.
- On May 17, 1996, less than two months after Arvid's death, Lucy executed a new will that left her entire estate to her daughter, Lulofs, and made no provision for her stepson, Keith.
- After Arvid's death, Lucy also changed the beneficiary of the 1994 life insurance policy to make her daughter, Lulofs, the sole (100%) beneficiary.
- Lucy died in 2006.
Procedural Posture:
- After Lucy F. Keith died in 2006, Venocia W. Lulofs, as executrix, offered Lucy's 1996 will for probate.
- Walter Steven Keith challenged the probate of the 1996 will in the circuit court (trial court), alleging it breached an irrevocable contract created by the 1987 wills he and Lucy had executed.
- The trial court found the evidence was insufficient to prove the 1987 wills were contractually irrevocable.
- The trial court entered a judgment accepting Lucy's 1996 will for probate.
- Keith (appellant) appealed the trial court's judgment to the Supreme Court of Virginia, with Lulofs (appellee) as the responding party.
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Issue:
Does the execution of mutual, reciprocal 'mirror image' wills, without more, create an irrevocable contract that prevents the surviving testator from executing a new will with a different dispositive plan?
Opinions:
Majority - Justice Cleo E. Powell
No. The execution of mutual, reciprocal wills does not, in itself, create a binding, irrevocable contract. A will is generally revocable, and to overcome this principle, the party alleging the existence of a contract must prove it by 'clear and satisfactory' evidence. The language in the 1987 wills, which devised the estate to the surviving spouse 'in fee simple and [spouse's] absolute property,' indicates an intent to grant full ownership and control, not to create a trust or contractual obligation. Distinguishing this case from precedents like Black v. Edwards, the court noted the absence of testimony from the drafting attorney about an intent to make the wills irrevocable. Furthermore, Keith's testimony regarding conversations about the wills' irrevocability was uncorroborated, failing to satisfy Virginia's Dead Man's Statute, which requires corroboration for testimony from an interested party against a decedent's estate. The existence of the life insurance policy, created seven years after the wills, did not serve as corroboration for the testators' intent at the time the wills were executed.
Analysis:
This decision reaffirms the high evidentiary standard required in Virginia to prove that mutual wills are contractually binding and irrevocable. It emphasizes that the default nature of a will is revocability, and courts will not infer a contract to make wills irrevocable merely from their reciprocal nature. The ruling serves as a strong reminder to estate planners and testators that if irrevocability is the goal, this intent must be expressed unambiguously in the will itself or in a separate contract. The case also highlights the significant hurdle of the Dead Man's Statute, which can prevent an interested party's claims from succeeding if their testimony about a decedent's intent lacks independent corroboration.
