Wills & Estates

Question 1

A will is probated

Answer 1

in the Circuit Court that sits within the city or county where the decedent had a known place of residence.

Question 2

Jurisdiction for probate - Nursing Home

Answer 2

There is a rebuttable presumption that moving into a nursing home does not change the place of residence.

Question 3

In the following order, the following must be considered when deciding where (the County or City) to probate a will:

Answer 3

The decedent has a place of residence
The decedent owns real estate
The decedent died

(Va. Code § 64.2-443
A. . . . A will shall be offered for probate in the circuit court in the county or city wherein the decedent has a known place of residence; if he has no such known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and if there is no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.)

Question 4

Contracts to Make a Will

Answer 4

A contract to make a will is controlled by the law of contracts and is enforceable as other contracts.

Barbri:
The Will and any contract are legally distinct, and the law pertaining to each must provide the remedy. The law of contracts cannot impact the validity of a Will. However, if a Will constitutes a breach of a contractual obligation, there might be a successful breach of contract cause of action, resulting in judicial imposition of a constructive trust (a broadly available equitable remedy discussed further in the trusts lecture) on the estate or on Will beneficiaries (depending on whether distribution of the promised property has yet occurred).

Question 5

Contracts to Make a Will - Remedy

Answer 5

The available remedy for breach of this type of contract is Specific Performance.

That is, if a will constitutes a breach of a contractual obligation, a constructive trust will be imposed by the court on the estate to satisfy a valid contract.

Question 6

Mabel agrees with her son that she will devise her house to him in her will. For this agreement to be an enforceable contract, the contract must be:

Answer 6

Signed by Mabel
in writing 
proved by clear and convincing evidence 
based on valuable consideration
certain and definite as to its terms

Question 7

Requirements for Valid Wills

Answer 7

A self-proving affidavit is not required for a valid will, but the will must meet the following requirements:

It must be in writing and signed by the testator. The testator must sign or acknowledged the will in the presence of two competent witnesses, who are present together at the time.

The two witnesses must “subscribe the will in the presence of the testator.”

Question 8

Where a contract deals with the transfer of real property, it must satisfy

Answer 8

the Statute of Frauds. To satisfy the Statute of Frauds, the contract must be in writing, and signed by the party to be charged.

Question 9

Non-resident executor?

Answer 9

Out-of-state residents may serve as executors, so long as they consent to Service of Process in Virginia, and post a surety bond.

The out-of-state resident must post a surety bond even if waived by the decedent’s will, unless a Virginia resident also qualifies as coexecutor (or administrator c.t.a. to be precise) along with her.

Question 10

Generally, if a will beneficiary dies before the testator, the gift

Answer 10

lapses and the gift will pass under the residuary clause. If there is no residuary clause,
then the gift will pass under intestacy. If a decedent dies partially intestate and without a surviving spouse, the estate passes
to the decedent’s descendants, who take per capita with representation. The property is divided into equal shares at the first
generational level at which there are living takers. Va. Code §64.2-200

Question 11

Uniform Simultaneous Death Act, VA. CODE ANN. §§64.2-2200 – 2208: To be a survivor for purposes of intestate succession, non-probate transfer, or inheritance under a Last Will and Testament, one must survive the decedent by at least

Answer 11

120 hours (5 days).

Question 12

In Virginia, a gift can be saved under the anti-lapse statute so long as the

Answer 12

predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator.

Question 13

What are descendants and what is the general priority?

Answer 13

DESCENDANTS: A person’s children, grandchildren, etc.

General priority (first the family decedent created, then decedent’s native family):

1. spouse
2. children
3. other descendants (grandchildren, etc.)
4. parents
5. siblings
6. siblings’ descendants (nephews/nieces, grandnephews/nieces, etc.)
7. grandparents
8. grandparents’ descendants not already on this list (uncles/aunts, cousins)

Question 14

In the Commonwealth,

a holographic will is valid without further requirements, provided that

Answer 14

(1) it is wholly in the testator’s handwriting;
(2) it is signed by the testator, and
(3) is proved by at least two disinterested witnesses familiar with her handwriting. Va. Code §64.2-403.

The testator must also be 18 and have the requisite testamentary intent and capacity.

The holographic will must be signed in
such a manner as to make it manifest that the name is intended as a signature. Virginia law does not define what shall constitute a signature, and a first name, initials or even a mark can be sufficient, if that was an ordinary way for a testator to
sign her name. Irving v. Divito, 294 Va. 465 (2017).

Question 15

What are the two ways a will can be revoked?

Answer 15

(1) a valid subsequent testamentary instrument that expressly or impliedly revokes a previous will and its codicils (it need not make alternate dispositions); or
(2) physical act of destruction;

Question 16

Which physical acts count to revoke a will?

Answer 16

“If a testator WITH THE INTENT TO REVOKE a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or DESTROYS a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.”

Question 17

Once a will is revoked, the will cannot be revived unless it is

Answer 17

re-executed with full testamentary formalities.

Question 18

A codicil is a

Answer 18

later testamentary instrument that amends, alters, or modifies a previously executed will.

Question 19

A codicil must be executed with

Answer 19

the same testamentary formalities as a will.

Question 20

The valid execution of a codicil that makes referenced to the revoked will would

Answer 20

cause the will to be revived under the republication by codicil. Va. Code §64.2-411.

Question 21

A disinterested witness is someone that

Answer 21

is not a beneficiary under the will.

Question 22

May a testator disinherit their child?

Answer 22

Yes.

Question 23

Can two persons enter into a binding contract not to revoke or amend their wills?

Answer 23

Yes. Two persons can enter into a binding contract not to revoke or amend their wills, but the agreement must be explicit and will not be inferred simply from execution of reciprocal wills. The proof could be in the form
of an express statement in the Wills, testimony by witnesses as to “admissions” by the testators, or circumstances that imply an agreement.

Question 24

Can contracts be oral?

Answer 24

Yes. However, the usual elements of a contract—offer, acceptance, and consideration, as well as its essential terms still need to be established, by clear and convincing evidence.

Question 25

What is needed if Sam wants to enforce an oral contact against someone now deceased?

Answer 25

testimony corroboration from a source other than Sam and not in Sam’s control.

Question 26

What two requirements must be met to find a document to be a testamentary instrument?

Answer 26

The two requirements for finding that a document is a testamentary instrument are capacity and testamentary intent.

Question 27

What does testamentary intent entail? How is it proved?

Answer 27

Testamentary intent entails reference to property, persons,
and death and a desire that the document itself effect the transfer of property to persons at death. At least some evidence of such intent must appear on the face of the Will. Bailey v. Kerns, 246 Va. 158 (1993).

Question 28

If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is

Answer 28

entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.

Question 29

Paternity must be proved by the

Answer 29

the clear and convincing standard.

If the facts stipulate that the paternity has been “conclusively established,” then the standard has been met.

Question 30

If the testator died intestate and there is no surviving spouse, then the estate

Answer 30

descends and passes to the decedent’s children and their descendants.

Question 31

The life insurance proceeds are a

Answer 31

non-probate asset and pass to the contractual beneficiary.

Question 32

What, if anything, would the executor be required to do with regard to any share of the estate to which a minor is entitled to receive?

Answer 32

The executor is required to petition the court to have a guardian of the estate appointed to manage the property passing to the minor. They cannot simply distribute the property to the minor or or the minor’s guardian.

The guardian of the estate must post bond, unless will waives doing so [§ 64.2-504, -505]; provide a list of heirs at the time of qualification [§ 64.2-509]; file an inventory within four months of appointment [§ 64.2-1300]; and file an accounting within 16 months of qualification and annually thereafter [§ 64.2-1304].

Question 33

What happens, under § 64.2-419.B, if the omitted child dies before reaching age 18?

Answer 33

“However, if such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.”