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Full Opinion
PRESENT: All the Justices
WALTER STEVEN KEITH
OPINION BY
v. Record No. 110433 JUSTICE CLEO E. POWELL
April 20, 2012
VENOCIA W. LULOFS, EXECUTRIX OF
THE ESTATE OF LUCY F. KEITH
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge
The issue before this Court is whether the trial court
erred in deciding that Walter Steven Keith ("Keith") failed to
prove that the 1987 wills executed by Arvid L. Keith, Jr.
("Arvid") and Lucy F. Keith ("Lucy") were irrevocable,
reciprocal wills. We hold that the trial court did not err and,
therefore, will affirm the trial court's judgment.
I. FACTS AND PROCEEDINGS
At the trial on this matter, the evidence proved that Arvid
and Lucy were married in 1972. At the time of their marriage,
each had a child from a previous marriage: Arvid had a son,
Keith, and Lucy had a daughter, Venocia W. Lulofs ("Lulofs").
Arvid and Lucy executed wills on December 9, 1987, that
were "mirror images" of each other. Each will left the estate
first to the surviving spouse and then to Keith and Lulofs
equally.
Arvid died on March 21, 1996, and his estate passed to Lucy
pursuant to the 1987 will. Following Arvid's death, Lucy
executed a new will on May 17, 1996, in which she left the
entirety of her estate to Lulofs and made no provision for
Keith. Lucy died in 2006. After Lucy's death, Lulofs attempted
to probate Lucy's will, which Keith challenged.
The evidence also demonstrated that in 1994, Arvid and Lucy
took out an insurance policy naming both Keith and Lulofs as the
primary beneficiaries, each with a 50% share of the proceeds.
Lucy changed the beneficiary percentages on the insurance policy
on April 1, 1996, such that Keith would receive 22% and Lulofs
would receive 78%. Lucy changed the insurance policy again on
May 30, 1996, so that Lulofs received 100%.
Keith testified about several conversations that he had had
about the wills and insurance policy. Specifically, he
testified that in 1991, his father told him that he and Lucy
made "reciprocal wills" leaving everything to Lulofs and him in
equal shares. He testified that in 1994 Lucy mentioned the life
insurance policy, saying that they did this so there "won't be
any money to fight over once we die." He also testified that
shortly before Arvid died, Arvid told him to "watch out for
[Lucy]." Arvid told him that he was going to ensure that
everything was divided evenly. Keith testified that Lulofs told
him in 2006 that their parents had reciprocal wills.
Lulofs testified that she recalled a discussion between
Arvid, Lucy, Keith and herself about the life insurance policy,
but did not remember the specifics of that conversation.
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Keith argued that Arvid and Lucy executed reciprocal wills
in 1987 that became an irrevocable contract upon the death of
either party. He also alleged that the estate was to be funded
with the proceeds of the life insurance policy and that the
policy was evidence of the testators' intent to make the 1987
wills irrevocable.
Although the trial court concluded that the 1987 wills were
"mutual and reciprocal," it found that the evidence was
insufficient to prove that the wills reflected a contractual
agreement to bind the survivor. Specifically, the trial court
noted that the attorney who drafted the 1987 wills for Arvid and
Lucy had no recollection of the wills or the circumstances under
which they were prepared and executed. The attorney also did
not remember the 1996 will that he drafted for Lucy after
Arvid's death.
The court admitted the insurance applications submitted by
Arvid and Lucy and the resulting joint insurance policy as
potentially corroborative evidence of Keith's testimony. The
court concluded, however, that the insurance policy shed little
light on the intent of the testators to make the wills
irrevocable. The trial court held that there was no evidence
that Lucy did not have the authority to change the beneficiary
of the life insurance policy after Arvid's death.
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Finally, the trial court held that Keith's testimony as to
the intent for the wills to be irrevocable was uncorroborated
and, therefore, there was insufficient evidence that the
testators' intended to make the 1987 wills a contract when they
executed them. The circuit court accepted Lucy's 1996 will for
probate and entered judgment accordingly. This appeal follows.
II. ANALYSIS
On appeal, Keith makes two basic arguments. First, Keith
contends that because the 1987 wills were "mirror image" wills,
the testators' intended them to be irrevocable. Second, he
argues that even if the content of the wills does not clearly
establish their contractual nature, he presented sufficient
corroborative evidence of the testators' intent. Specifically,
he asserts that 1) the testimony from Keith and Lulofs
corroborated the 1987 wills; 2) the 1994 insurance policy
indicates the intent that the 1987 wills were to be irrevocable
upon the death of one testator; and 3) Keith's testimony about
various out-of-court statements by Arvid corroborate the
parties' intent.
A. The Trial Court Did Not Err In Holding That The Wills
Did Not Form An Irrevocable Contract Between The Testators
Where a party asserts that the wills are reciprocal and
irrevocable, it is important to distinguish the law of wills and
the law of contracts. See Salley v. Burns, 220 Va. 123, 131,
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255 S.E.2d 512, 516 (1979) (citing T. Atkinson, Law of Wills
§ 49, at 224 (2d ed. 1953)). A significant distinction between
the two areas of law is that wills, unlike contracts, generally
are unilaterally revocable and modifiable. Williams v.
Williams, 123 Va. 643, 646, 96 S.E. 749, 750 (1918). A will
does not become irrevocable or unalterable simply because it is
drafted to "mirror" another testator's will. See id.
[T]he fundamental reason for this rule is that
every purely testamentary disposition of property
is in the nature of a gift, and a different rule
applies where a contract "is disguised under the
name and appearance of a will." In the latter
event the contractual nature of the instrument
does not necessarily defeat its character as a
will, but enables the party for whose benefit the
contract was made to prevent, by resorting to a
court of equity, a revocation which would destroy
the compact or the trust created thereby.
Id. at 646-47, 96 S.E. at 750 (citations omitted). Thus, "when
reciprocal testamentary provisions are made for the benefit of a
third party, there is sufficient consideration for the
contractual element of the will to entitle the beneficiary to
enforce the agreement in equity, provided the contract itself is
established." Salley, 220 Va. at 131, 255 S.E.2d at 516. Proof
of the contractual nature of this agreement between the
testators must be "clear and satisfactory." Id.
Such proof "may expressly appear in the language
of the instrument, or it may be supplied by
competent witnesses who testify to admissions of
the testators, or it may result as an implication
from the circumstances and relations of the
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parties and what they have actually provided for
by the instrument."
Id. at 131-32, 255 S.E.2d at 516-17.
In Black v. Edwards, 248 Va. 90, 93, 445 S.E.2d 107, 109
(1994), this Court held that the mutual and reciprocal wills at
issue were irrevocable contracts. We based that decision upon
the unimpeached testimony of the drafting attorney who testified
that the parties intended to draft reciprocal, irrevocable
wills. Id. Here, the attorney who drafted the wills for Arvid
and Lucy in 1987 had no recollection of the wills or the
circumstances under which they were prepared, nor did he
remember the 1996 will that he drafted for Lucy after Arvid's
death.
By contrast, in Salley, we determined that the evidence was
insufficient to establish an irrevocable contract where a joint
will stated that if either spouse survived the other, the
property at issue vested in the survivor. Id. at 133, 255
S.E.2d at 517. The third paragraph of the will also contained a
clause providing that
[b]oth parties . . . jointly and severally agree
not to sell, encumber or otherwise hypothecate or
dispose of any property . . . without the written
consent of the other party, it being the mutual
desire and will of both parties to this
indenbture [sic] to hold all property now owned
of [sic] hereafter acquired by either for the use
and benefit of their natural offsprings . . . .
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Id. at 126-27, 255 S.E.2d at 514 (emphasis in original). The
will further specified that if neither testator survived, the
property vested in the daughters "share and share alike." Id.
at 127, 255 S.E.2d at 514. Salley argued that the language of
the third paragraph created a binding contract. Id. This Court
held that no binding contract was created by the joint will
because so holding would have required the surviving testator to
hold the entire estate for the benefit of the daughters. Id. at
134, 255 S.E.2d at 518. Such a strained interpretation would
have left the surviving testator destitute. Id.
Such an unreasonable result is completely foreign
to the testamentary scheme established by the
other provisions of the will. If achievement of
that goal had been the testators' purpose,
language more explicit could have been used.
When an estate in fee simple is devised in one
part of a will, by clear and unambiguous words,
such estate is not diminished nor destroyed by
terms contained in another part of the
instrument, unless such terms which reduce the
estate be as clear and decisive as the words by
which it was created.
Id. (citing Smith v. Trustees of the Baptist Orphanage, 194 Va.
901, 908, 75 S.E.2d 491, 495-96 (1953)).
The language at issue in Salley is very similar to the
language in the 1987 wills:
I give, devise and bequeath unto my beloved
[spouse] if [spouse] survives me by thirty days,
all of my property and estate, real, personal and
mixed, wherever situate, whether now acquired or
acquired hereafter, to be [spouse's] in fee
simple and [spouse's] absolute property.
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. . . .
In the event that my [spouse] predeceases me
or fails to survive me by thirty days, I give,
devise and bequeath all of my property of every
sort, kind and description, real, personal, and
mixed, unto [Keith] and [Lulofs] in equal shares,
share and share alike.
In both wills, the testators' clear intent was to transfer the
estate to the surviving spouse.
Moreover, language in Salley was even more conducive to an
argument that it created a contract because it expressly
precluded either spouse from divesting himself or herself of any
property without the consent of the other – an action that could
only occur during the life of both. Despite this language, when
focusing on the will as a whole, this Court found no clear and
convincing evidence of an intent to form a binding contract.
220 Va. at 134, 255 S.E.2d at 518.
The interpretation urged by Keith would create the very
real risk that any testator who executes a will that "mirrors"
another will and contains language similar to that contained in
the wills at issue here, would be unintentionally hamstrung by
the death of the purportedly reciprocal testator. In fact, the
testator would be unable to provide for any future spouse or any
child born or adopted during a later marriage. Such an
interpretation is unreasonable.
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The language of these "mirror image" wills is insufficient
alone to form a contract and, therefore, Keith failed to meet
his burden to show that the 1987 wills were irrevocable. Thus,
the trial court did not err in so holding.
B. The Trial Court Did Not Err In Holding
That Keith's Testimony Was Not Corroborated
Keith argued that even if the express language of the wills
was not sufficient to establish a contract, he presented
sufficient circumstantial evidence to establish that Arvid and
Lucy intended for the wills to be contracts. We disagree.
In pertinent part the Dead Man's Statute, Code § 8.01-397,
provides:
In an action by or against a person who, from any
cause, is incapable of testifying, or by or
against the committee, trustee, executor,
administrator, heir, or other representative of
the person so incapable of testifying, no
judgment or decree shall be rendered in favor of
an adverse or interested party founded on his
uncorroborated testimony.
This statute was enacted largely to provide relief from the
harsh common law rule that would have prohibited testimony from
the surviving witness and, therefore, the nature and quantity of
the corroboration will vary depending on the facts of the case.
Virginia Home for Boys & Girls v. Phillips, 279 Va. 279, 286,
688 S.E.2d 284, 287 (2010). Corroboration may, and often must,
be shown through circumstantial evidence, but each point need
not be corroborated nor must the corroboration rise to the level
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of confirmation as long as the corroboration strengthens the
testimony provided by the surviving witness. Id. at 286, 688
S.E.2d at 287-88.
Here, Keith provided no independent evidence or testimony
to corroborate his testimony regarding the contractual nature of
the wills. Keith's argument that Lulofs' testimony corroborates
his is without merit. Lulofs merely testified that she recalled
a discussion about the insurance policy between herself, Keith,
Arvid and Lucy, but Lulofs could not recall the specifics of that
conversation. Further, the existence of the insurance policy
itself does not provide corroboration. An insurance policy
taken out seven years after the wills were executed cannot
provide evidence as to the intent of the testators at the time
the wills were drafted. Thus, no evidence in this record
corroborates Keith's testimony as required by the Dead Man's
statute.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
trial court.
Affirmed.
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