Subtitle I. General Provisions.
Chapter 1. Definitions and General Provisions.
Article 1. Definitions.
§ 64.2-100. Definitions.
As used in this title, unless the context otherwise requires:
“Bona fide purchaser” means a purchaser of property for value who has acted in the transaction in good faith. Notice of a seller’s marital status, or notice of the existence of a premarital or marital agreement, does not affect the status of a bona fide purchaser. A “purchaser” is one who acquires property by sale, lease, discount, negotiation, mortgage, pledge, or lien or who otherwise deals with property in a voluntary transaction, other than a gift. A purchaser gives “value” for property acquired in return for a binding commitment to extend credit to the transferor or another as security for or in total or partial satisfaction of a pre-existing claim, or in return for any other consideration sufficient to support a simple contract.
“Fiduciary” includes a guardian, committee, trustee, executor, conservator, or personal representative.
“Personal representative” includes the executor under a will or the administrator of the estate of a decedent, the administrator of such estate with the will annexed, the administrator of such estate unadministered by a former representative, whether there is a will or not, any person who is under the order of a circuit court to take into his possession the estate of a decedent for administration, and every other curator of a decedent’s estate, for or against whom suits may be brought for causes of action that accrued to or against the decedent.
“Trustee” means a trustee under a probated will or an inter vivos trust instrument.
“Will” includes any testament, codicil, exercise of a power of appointment by will or by a writing in the nature of a will, or any other testamentary disposition.
History. Code 1950, § 64-47; 1968, c. 656, § 64.1-45; 1992, cc. 617, 647, § 64.1-01 ; 2012, c. 614.
Transition provisions.
Acts 2012, c. 614, effective October 1, 2012, recodified Titles 26 , 31, and 64.1, as well as Chapters 10 (§ 37.2-1000 et seq.) and 10.1 (§ 37.2-1031 et seq.) of Title 37.2 and Chapters 2.1 (§ 55-34.1 et seq.), 15 (§ 55-268.11et seq.), 15.1 (§ 55-277.1 et seq.), 16 (§ 55-278 et seq.), 22 (§ 55-401 et seq.), and 31 (§ 55-541.01 et seq.) of Title 55. In addition to revision by Acts 2012, c. 614, the recodified sections were also amended by other acts passed at the 2012 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.
Acts 2012, c. 614, cl. 2, provides: “That whenever any of the conditions, requirements, provisions, or contents of any section or chapter of Titles 26 , 31, 37.2, 55, and 64.1 or any other title of the Code of Virginia as such titles existed prior to October 1, 2012, are transferred in the same or modified form to a new section or chapter of Title 64.2 or any other title of the Code of Virginia and whenever any such former section or chapter is given a new number in Title 64.2 or any other title, all references to any such former section or chapter of Titles 26 , 31, 37.2, 55, and 64.1 or other title appearing in this Code shall be construed to apply to the new or renumbered section or chapter containing such conditions, requirements, provisions, contents, or portions thereof.”
Acts 2012, c. 614, cl. 3, provides: “That the regulations of any department or agency affected by the revision of Titles 26 , 31, 37.2, 55, and 64.1 or such other titles in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations adopted under this act.”
Acts 2012, c. 614, cl. 4, provides: “That the provisions of § 30-152 of the Code of Virginia shall apply to the revision of Title 64.2 so as to give effect to other laws enacted by the 2012 Session of the General Assembly, notwithstanding the delay in the effective date of this act.”
Acts 2012, c. 614, cl. 5, provides: “That the repeal of Titles 26 and 31; Chapters 10 and 10.1 of Title 37.2; Chapter 2.1, Article 1.2 of Chapter 15, and Chapters 15.1, 16, 22, and 31 of Title 55; and Title 64.1, effective as of October 1, 2012, shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued, or accruing on or before such date, or any proceeding, prosecution, suit, or action pending on that day. Except as otherwise provided in this act, neither the repeal of Titles 26 and 31; Chapters 10 and 10.1 of Title 37.2; Chapter 2.1, Article 1.2 of Chapter 15, and Chapters 15.1, 16, 22, and 31 of Title 55; and Title 64.1 nor the enactment of Title 64.2 shall apply to offenses committed prior to October 1, 2012, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purpose of this enactment, an offense was committed prior to October 1, 2012, if any of the essential elements of the offense occurred prior thereto.”
Acts 2012, c. 614, cl. 6, provides: “That any notice given, recognizance taken, or process or writ issued before October 1, 2012, shall be valid although given, taken, or to be returned to a day after such date, in like manner as if Title 64.2 had been effective before the same was given, taken, or issued.”
Acts 2012, c. 614, cl. 7, provides: “That if any clause, sentence, paragraph, subdivision, or section of Title 64.2 shall be adjudged in any court of competent jurisdiction to be invalid, the judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, or section thereof directly involved in the controversy in which the judgment shall have been rendered, and to this end the provisions of Title 64.2 are declared severable.”
Acts 2012, c. 614, cl. 8, provides: “That the provisions of former § 64.1-55, which provide that holographic wills admitted to probate in the Commonwealth prior to March 20, 1922, where the handwriting was proved by one disinterested witness instead of two disinterested witnesses are validated and are as binding and effectual as if proved by two witnesses shall continue to apply, and shall apply only, to such holographic wills.”
Acts 2012, c. 614, cl. 9, provides: “That the provisions of former § 26-57, which provide that the actions of substitute trustees who have been appointed without sufficient notice or any notice to any interested party done prior to July 27, 1942, are validated and effectual as if notice was given shall continue to apply, and shall apply only, to the actions of such substitute trustees.”
Acts 2012, c. 614, cl. 10, provides: “That the repeal of Titles 26 and 31; Chapters 10 and 10.1 of Title 37.2; Chapter 2.1, Article 1.2 of Chapter 15, and Chapters 15.1, 16, 22, and 31 of Title 55; and Title 64.1, effective as of October 1, 2012, shall not affect the validity, enforceability, or legality of any will, trust instrument, power of attorney, or other instrument or of any fiduciary relationship, or any right established or accrued under such instrument or by such relationship, that existed prior to such repeal.”
Acts 2012, c. 614, cl. 12, provides: “That the provisions of this act shall become effective on October 1, 2012.”
Law Review.
For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).
For 1992 survey of property law in Virginia, see 26 U. Rich. L. Rev. 825 (1992).
For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).
For annual survey of Virginia law article, “Wills, Trusts, and Estates,” see 47 U. Rich. L. Rev. 343 (2012).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 1 Introductory. § 1.02 And Is the Creature of Law, et seq. Cox.
Virginia Forms (Matthew Bender). No. 15-101 Checklist for Will Interview, et seq.
CASE NOTES
“Will” defined. —
The essence of the various definitions of the word “will,” as applied to the disposition of one’s property after death, by lexicographers, text writers and in the decided cases is: “The legal declaration of a person’s mind as to the manner in which he would have property or estate disposed of after his death; the written instrument legally executed, by which a man makes disposition of his estate, to take effect after his death.” Smith v. Smith, 112 Va. 205 , 70 S.E. 491 , 1911 Va. LEXIS 72 (1911) (decided under prior law); Seefried v. Clarke, 113 Va. 365 , 74 S.E. 204 , 1912 Va. LEXIS 45 (1912).
This section and § 64.1-49 require the same formalities in the execution of a codicil as in the execution of the will itself. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948) (decided under prior law).
CIRCUIT COURT OPINIONS
Power of attorney. —
If what distinguishes a valid will from a contract or an inter-vivos trust is the absence of any transfer of the testator’s property during the testator’s lifetime, it stands to reason that a power of attorney is equally distinguishable on those grounds. Shakeel v. Khanum, 62 Va. Cir. 188, 2003 Va. Cir. LEXIS 108 (Fairfax County June 23, 2003) (decided under prior law).
§ 64.2-101. Construction of generic terms.
In the interpretation of wills and trusts, adopted persons and persons born out of wedlock are included in class gift terminology or terms of relationship in accordance with rules for determining relationships for purposes of intestate succession unless a contrary intent appears on the face of the will or trust. In determining the intent of a testator or settlor, adopted persons are presumptively included in such terms as “children,” “issue,” “kindred,” “heirs,” “relatives,” “descendents” or similar words of classification and are presumptively excluded by such terms as “natural children,” “issue of the body,” “blood kindred,” “heirs of the body,” “blood relatives,” “descendents of the body” or similar words of classification. In the event that a fiduciary makes payment to members of a class to the exclusion of persons born out of wedlock of whose claim of paternity or maternity the fiduciary has no knowledge, the fiduciary shall not be held liable to such persons for payments made prior to knowledge of such claim. This section shall apply to all inter vivos trusts executed after July 1, 1978, and to all wills of decedents dying after July 1, 1978, regardless of when executed.
History. 1978, c. 647, § 64.1-71.1; 1987, c. 604; 2012, c. 614.
Law Review.
For 1987 survey of Virginia wills, trusts, and estates law, see 21 U. Rich. L. Rev. 855 (1987).
For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).
For annual survey article on wills, trusts, and estates, see 40 U. Rich. L. Rev. 381 (2005).
CASE NOTES
Definition of “issue.” —
This section’s abrogation of the common law definition of “issue,” which did not include adopted persons, did not apply to trusts executed before 1978, because trusts were to be interpreted according to the law in effect at the time the trust was executed, so trusts executed before 1978 did not include adopted persons as “lineal descendants,” as “lineal descendants” were synonymous with “issue.” McGehee v. Edwards, 268 Va. 15 , 268 Va. 23 , 597 S.E.2d 99, 2004 Va. LEXIS 96 (2004) (decided under prior law).
Article 2. General Provisions.
§ 64.2-102. Meaning of child and related terms.
If, for purposes of this title or for determining rights in and to property pursuant to any deed, will, trust or other instrument, a relationship of parent and child must be established to determine succession or a taking by, through, or from a person:
- An adopted person is the child of an adopting parent and not of the biological parents, except that adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent.
- The parentage of a child resulting from assisted conception is determined as provided in Chapter 9 (§ 20-156 et seq.) of Title 20.
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Except as otherwise provided by subdivision 1 or 2, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
- The biological parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage was prohibited by law, deemed null or void, or dissolved by a court; or
- Paternity is established by clear and convincing evidence, including scientifically reliable genetic testing, as set forth in § 64.2-103 ; however, paternity established pursuant to this subdivision is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.
- No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such child shall be recognized unless, within one year of the date of the death of such parent (i) an affidavit by such child or by someone acting for such child alleging such parenthood has been filed in the clerk’s office of the circuit court of the jurisdiction wherein the property affected by such claim is located and (ii) an action seeking adjudication of parenthood is filed in an appropriate circuit court. The one-year limitation period runs notwithstanding the minority of such child; however, it does not apply in those cases where the relationship between the child born out of wedlock and the parent in question is established by (a) a birth record prepared upon information given by or at the request of such parent; (b) admission by such parent of parenthood before any court or in writing under oath; or (c) a previously entered judgment establishing such parent’s paternity by a court having jurisdiction to determine his paternity.
- Unless otherwise specifically provided therein, an order terminating residual parental rights under § 16.1-283 terminates the rights of the parent to take from or through the child in question but the order does not otherwise affect the rights of the child, the child’s kindred, or the parent’s kindred to take from or through the parent or the rights of the parent’s kindred to take from or through the child.
History. 1978, c. 647, § 64.1-5.1; 1989, c. 466; 1994, c. 919; 1998, c. 603; 1999, c. 781; 2009, c. 449; 2012, c. 614.
Editor’s note.
Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provided that the amendment to former § 64.1-5.1 by Acts 1993, c. 930, cl. 1, would become effective June 1, 1998, “if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly.” The funding was not provided.
Law Review.
For survey article, “Wills, Trusts, and Estates,” see 44 U. Rich. L. Rev. 631 (2009).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.09 Children and Their Descendants. Cox.
CASE NOTES
Analysis
I.General Consideration.
Editor’s note.
Most of the cases below were decided under prior law.
The statute of descent and distribution is not a canon of presumptive intent. It cannot be employed for that purpose and thus have its terms substituted for testator’s intent. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369, 1959 Va. LEXIS 175 (1959).
“Issue” is defined as “natural descendants of a common ancestor.” Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377, 1984 Va. LEXIS 211 (1984).
II.Adopted Children.
Legislature may give and take away right to inherit. —
The legislature may give to adopted children the right to share in the estate of their foster parents, and it may take this right away. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445, 1952 Va. LEXIS 154 (1952).
And right is determined by law in force at death of ancestor. —
The right of an adopted child to inherit is to be determined by the law in force at the death of the person from whom the inheritance is claimed. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445, 1952 Va. LEXIS 154 (1952).
Statutory steps are essential to the creation of the artificial relationship of parent and child, out of which relationship alone the mutual rights of inheritance spring. The new relationship is founded upon the preceding actions of the parties, but it is created by the court’s decree alone. Clarkson v. Bliley, 185 Va. 82 , 38 S.E.2d 22, 1946 Va. LEXIS 182 (1946).
Adopted child is on same footing as natural child. —
The words “from and through” as used in this section have a plain, simple and unmistakable meaning, with two significations, which cannot be ignored. The united words imply, in connection with inheritance, not only the obvious meaning that an adopted child shall inherit from the adopting parents, but that the adopting parents shall be the medium through which he may inherit from their relatives. Considered in connection with the broad and comprehensive language employed, they emphasize the specific intention to put an adopted child on the same footing as the natural child, thus giving him the right to take by representation what his adopting parent would have taken had he been alive, or what the natural child would have taken, had there been one, upon the death of his father intestate. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445, 1952 Va. LEXIS 154 (1952).
And may inherit from remote ancestors. —
A legally adopted child is entitled to inherit, according to the statutes of descent and distribution, the real estate of a deceased sister of his adopting father. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445, 1952 Va. LEXIS 154 (1952).
In Fletcher v. Flanary , 185 Va. 409 , 38 S.E.2d 433 (1946), after stating that adopted children take from their foster parents, who die intestate, what children born in wedlock would take, the opinion states “but they take nothing as heirs or distributees from remote ancestors.” The latter statement was not necessary to the decision of the case, which turned on the construction of a deed, and the Supreme Court does not adopt it as a construction of this section. Mott v. National Bank of Commerce, 190 Va. 1006 , 59 S.E.2d 97, 1950 Va. LEXIS 189 (1950) (see McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445 (1952)).
And the statute of descents and distributions may not be altered by a private contract to adopt, whether written or oral. So a contract merely to adopt a child cannot be reasonably construed as conferring upon him the right to succeed to any part of the estate of another. Clarkson v. Bliley, 185 Va. 82 , 38 S.E.2d 22, 1946 Va. LEXIS 182 (1946).
When used in a will the term “heir” is subject to different meanings dependent upon the over-all context of the will, construed to give effect to the testator’s intent. It may include legal heirs under the statute of descent and distribution, or may include heirs of the body only, excluding heirs general and adopted children. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369, 1959 Va. LEXIS 175 (1959); Merson v. Wood, 202 Va. 485 , 117 S.E.2d 661, 1961 Va. LEXIS 133 (1961).
The words “but if she should die without heir” were not intended to include an adopted child. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369, 1959 Va. LEXIS 175 (1959).
It would be unreasonable to say that a testatrix had in mind at the time of the execution of her will and at the time of her death that by the use of the word “heirs” she intended to include an adult adopted long after her death. Since there was nothing in the will to show such intention it was presumed that the testatrix intended that her property would go according to the law of natural descent, and not according to the relationship created by law. Merson v. Wood, 202 Va. 485 , 117 S.E.2d 661, 1961 Va. LEXIS 133 (1961).
“Issue” does not include adopted children unless intent to include them is expressly or reasonably implied by the language of the will or may be reasonably inferred from extrinsic evidence properly before the court. Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377, 1984 Va. LEXIS 211 (1984).
Right fixed by contract. —
The legislature may from time to time change the course of descents and distributions. It may give to adopted children the right to participate in the intestate estates of their foster parents, and it may take this right away, but it cannot change a right which an ancestor by adoption can fix by contract. Fletcher v. Flanary, 185 Va. 409 , 38 S.E.2d 433, 1946 Va. LEXIS 210 (1946).
III.Illegitimate Children.
Applicability. —
Although the intestate decedent’s children who were born out of wedlock were required to establish in a partition suit that the children were the decedent’s children to prove their title to the subject real property under § 64.1-1, the statute of descents, the children were not bound by the requirements of subdivision 4 of § 64.1-5.1 applicable to the settlement of the decedent’s estate. Jenkins v. Johnson, 276 Va. 30 , 661 S.E.2d 484, 2008 Va. LEXIS 64 (2008).
This section and § 64.1-5.2 treat maternal kindred of illegitimates differently from paternal kindred. This classification is not regarded as suspect, and the Commonwealth need only show a rational basis for the disparate treatment. King v. Commonwealth, 221 Va. 251 , 269 S.E.2d 793, 1980 Va. LEXIS 242 (1980).
Illegitimate son of a male devisee under a will was not “issue,” as that term was used in the will in the phrase “and if he [the devisee] should die without issue.” In view of the general rule that a gift to issue imports prima facie legitimate issue, excluding those who are illegitimate, the testator’s presumed intent was that the devisee leave legitimate issue to prevent the land from passing to another named in the will. The testator undoubtedly knew of the devisee’s illegitimate son when he executed the will and he demonstrated a desire that the land remain in the family. Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377, 1984 Va. LEXIS 211 (1984).
Burden is on child regardless of form of proceeding, to establish paternity by showing that the putative father gave consent to someone, other than the mother, responsible for providing vital statistics for the child’s birth certificate that his name be listed as the father. Johnson v. Branson, 228 Va. 65 , 319 S.E.2d 735, 1984 Va. LEXIS 173 (1984).
Exhumation in determining parentage for inheritance purposes. —
Use of the word “may” in subsection C of § 32.1-286 is not discretionary because there is nothing in the statute to suggest that the trial court has the discretion to deny an exhumation to a person who has met the statute’s stated requirements; the only discretion is limited to determining whether a petitioner is a “party attempting to prove” parentage for inheritance purposes under §§ 64.1-5.1 and 64.1-5.2.Martin v. Howard, 273 Va. 722 , 643 S.E.2d 229, 2007 Va. LEXIS 51 (2007).
Illegitimate child had right of substitution to her father’s interest under his wife’s will, where, prior to the father’s death, former § 64.1-5, which would have prohibited the child from inheriting by or through her putative father, was effectively invalidated, and this section was enacted and former § 64.1-5 was repealed after her father’s death and before the wife’s death. The one-year limitation period in subdivision 3 of this section did not begin to run until the wife’s death since the child’s right to claim her inheritance in the wife’s estate through her putative father did not accrue until the wife’s death. The trial court erred in ruling that the statute began to run on its effective date (July 1, 1978) and in ruling that the child’s claim was therefore time-barred, since this would have been a statutory taking of her property without due process in violation of both the federal and Virginia Constitutions. Marshall v. Bird, 230 Va. 89 , 334 S.E.2d 573, 1985 Va. LEXIS 255 (1985).
Subsection (3)(b) does not deal with establishment of paternity, but rather, this clause deals with the right of a father or his kindred to inherit from or through a child born out of wedlock. Jones v. Eley, 256 Va. 198 , 501 S.E.2d 405, 1998 Va. LEXIS 78 (1998).
Inheritance by and from illegitimates under former statutes. —
See Garland v. Harrison, 35 Va. (8 Leigh) 368, 1837 Va. LEXIS 26 (1837); Hepburn v. Dundas, 54 Va. (13 Gratt.) 219, 1856 Va. LEXIS 10 (1856); Bennett v. Toler, 56 Va. (15 Gratt.) 588, 1860 Va. LEXIS 21 (1860); Fitchett v. Smith, 78 Va. 524 , 1884 Va. LEXIS 27 (1884); Scott v. Raub, 88 Va. 721 , 14 S.E. 178 , 1892 Va. LEXIS 24 (1892); Blair v. Adams, 59 F. 243, 1893 U.S. App. LEXIS 2952 (C.C.D. Tex. 1893); Snidow v. Day, 145 Va. 721 , 134 S.E. 704 , 1926 Va. LEXIS 429 (1926).
Time limitations. —
In a contested probate matter, a daughter born out of wedlock could not have shared in a decedent’s estate because no action to adjudicate the alleged parent-child relationship was commenced within one year of the decedent’s death; the fact that the daughter was initially included on a list of heirs filed by the administratrix was irrelevant. Belton v. Crudup, 273 Va. 368 , 641 S.E.2d 74, 2007 Va. LEXIS 27 (2007).
CIRCUIT COURT OPINIONS
Child adopted in Pennsylvania could inherit from biological father in Virginia. —
Intestate father’s biological daughter who was adopted by her step-father after the biological mother’s remarriage retained the right to inherit from the father’s estate under Virginia law, § 64-55 and § 64.1-5.1, although she was adopted under Pennsylvania law, where adopted children did not retain such inheritance rights. In re Estate of Edwards, 77 Va. Cir. 351, 2009 Va. Cir. LEXIS 93 (Prince William County Jan. 14, 2009).
Filing of an affidavit of parenthood in a will contest. —
Circuit court denied an executor’s motion for summary judgment because, although a claimant in a will contest failed to file an affidavit or an action seeking adjudication of parenthood within a year of the decedent’s death, the claimant fell within a statutory exception to the filing requirement of subdivision 4 (i) of § 64.1-5.1 as the relationship between the claimant and her father was established by a birth record prepared upon information given by or at the request of her father. Thompson v. Banks, 61 Va. Cir. 539, 2003 Va. Cir. LEXIS 133 (Norfolk May 30, 2003).
Administration of estate by putative father. —
Putative father who showed not only that he was the biological father of decedent, but also that he openly treated the decedent as his child, and that he did not refuse to support the decedent established his paternity, and thus, he was entitled to administer the decedent’s estate. Williams v. Harris, 59 Va. Cir. 369, 2002 Va. Cir. LEXIS 245 (Fairfax County Aug. 19, 2002).
Statute of limitations. —
One-year limitation period in former § 64.1-5.1(4)(i) was not applicable where the relationship between the child and the parent was established by a birth record; the deoxyribonucleic acid testing documentation constituted such a birth record since the purported father had actual notice that the child was claiming paternity, and the father was an active participant in the process that was attempting to establish paternity. Freeman v. Manns, 2013 Va. Cir. LEXIS 161 (Roanoke Aug. 14, 2013).
Retroactivity. —
Amendments in 2009 to former § 64.1-5.1 do not operate retroactively; therefore, a failure to comply with the proof of paternity requirements did not bar a claim because the proof of paternity requirements did not apply to the determination of heirs to real property passing by intestate succession. Freeman v. Manns, 2013 Va. Cir. LEXIS 161 (Roanoke Aug. 14, 2013).
§ 64.2-103. Evidence of paternity.
-
For the purposes of this title, paternity of a child born out of wedlock shall be established by clear and convincing evidence, and such evidence may include the following:
- That he cohabited openly with the mother during all of the 10 months immediately prior to the time the child was born;
- That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth record of the child;
- That he allowed by a general course of conduct the common use of his surname by the child;
- That he claimed the child as his child on any statement, tax return, or other document filed and signed by him with any local, state, or federal government or any agency thereof;
- That he admitted before any court having jurisdiction to determine his paternity that he is the father of the child;
- That he voluntarily admitted paternity in writing under oath;
- The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or
- Other medical, scientific, or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.
- A judgment establishing a father’s paternity made by a court having jurisdiction to determine his paternity is sufficient evidence of paternity for the purposes of this section.
History. 1978, c. 647, § 64.1-5.2; 1989, c. 466; 1991, c. 479; 1999, c. 781; 2012, c. 614.
Law Review.
For survey article, “Wills, Trusts, and Estates,” see 44 U. Rich. L. Rev. 631 (2009).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.09 Children and Their Descendants. Cox.
CASE NOTES
Editor’s note.
The cases below were decided under former § 64.1-5.2 and prior law.
Section 64.1-5.1 and this section treat maternal kindred of illegitimates differently from paternal kindred. This classification is not regarded as suspect, and the Commonwealth need only show a rational basis for the disparate treatment. King v. Commonwealth, 221 Va. 251 , 269 S.E.2d 793, 1980 Va. LEXIS 242 (1980).
Burden is on child, regardless of form of proceeding, to establish paternity by showing that the putative father gave consent to someone, other than the mother, responsible for providing vital statistics for the child’s birth certificate that his name be listed as the father. Johnson v. Branson, 228 Va. 65 , 319 S.E.2d 735, 1984 Va. LEXIS 173 (1984).
Exhumation in determining parentage for inheritance purposes. —
Use of the word “may” in subsection C of § 32.1-286 is not discretionary because there is nothing in the statute to suggest that the trial court has the discretion to deny an exhumation to a person who has met the statute’s stated requirements; the only discretion is limited to determining whether a petitioner is a “party attempting to prove” parentage for inheritance purposes under §§ 64.1-5.1 and 64.1-5.2.Martin v. Howard, 273 Va. 722 , 643 S.E.2d 229, 2007 Va. LEXIS 51 (2007).
CIRCUIT COURT OPINIONS
Putative father entitled to administer estate. —
Putative father established that he was the biological father of the decedent, and thus, was entitled to serve as the estate administrator of decedent’s estate where he showed enough paternity factors to establish paternity by clear and convincing evidence. Williams v. Harris, 59 Va. Cir. 369, 2002 Va. Cir. LEXIS 245 (Fairfax County Aug. 19, 2002).
Putative father’s listing of decedent as his daughter, and designating her as a beneficiary on an enrollment form he submitted to the state retirement system shortly before the decedent died was further evidence that he established paternity, and thus, that he was entitled to administer decedent’s estate. Williams v. Harris, 59 Va. Cir. 369, 2002 Va. Cir. LEXIS 245 (Fairfax County Aug. 19, 2002).
§ 64.2-104. Incorporation by reference into a will, power of attorney, or trust instrument.
-
The following original documents may be incorporated by reference into a will, power of attorney, or trust instrument:
- A letter or memorandum to the fiduciary or agent as to the interpretation of discretionary powers of distribution where the will, power of attorney, or trust instrument grants the fiduciary or agent the power to make distributions to beneficiaries in the discretion of the fiduciary or agent; and
- A letter or memorandum stating the views or directions of the maker of the will, power of attorney, or trust instrument as to the exercise of discretion by the fiduciary or agent in making health care decisions for the maker.
- No provision in the original document sought to be incorporated by reference under this section is enforceable if it contradicts or is inconsistent with a provision of the incorporating will, power of attorney, or trust instrument, including if it alters the possession or enjoyment of trust property or the income therefrom as directed in the trust instrument.
- This section shall not prevent the incorporation by reference of any writing into any other writing that would otherwise be effective under § 64.2-400 or under any other law of incorporation by reference.
- The maker shall sign and have notarized the documents referenced in subsection A and may prepare the documents before or after the execution of the will, power of attorney, or trust instrument.
History. 2001, c. 369, § 64.1-45.2; 2002, c. 119; 2012, c. 614.
Law Review.
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).
Research References.
Virginia Forms (Matthew Bender). No. 13-717 Clause for Attorney’s Will — Digital Assets; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-207 Bequest or Devise to Minor, et seq.; No. 15-236 Incorporation by Reference of Letter of Instruction to Trustee, et seq.
§ 64.2-105. Incorporation by reference of certain powers of fiduciaries into will or trust instrument.
- For purposes of this section:“Environmental law” means any federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment or human health.“Estate” includes all interests in the real or personal property of a decedent passing by will or by intestate succession.“Fiduciary” includes one or more individuals or corporations having trust powers, and includes the fiduciary of the estate of a decedent and the trustee of an inter vivos or testamentary trust. Any substitute, added, or successor fiduciary shall have all of the powers hereby provided for the fiduciary named in the will or trust instrument.“Hazardous substances” means any substances defined as hazardous or toxic or otherwise regulated by any environmental law.
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The following powers, in addition to all other powers granted by law, may be incorporated in whole or in part in any will or trust instrument by reference to this section:
- To keep and retain any or all investments and property, real, personal or mixed, including stock in the fiduciary, if the fiduciary is a corporation, in the same form as they are at the time the investments and property come into the custody of the fiduciary, regardless of the character of the investments and property, whether they are such as then would be authorized by law for investment by fiduciaries, or whether a disproportionately large part of the trust or estate remains invested in one or more types of property, for such time as the fiduciary deems best, and to dispose of such property by sale, exchange, or otherwise as and when such fiduciary deems advisable.
- At the discretion of the fiduciary, to receive additions to the estate from any source, in cash or in kind, and to hold, administer, and distribute such additions as a part of and under the same terms and conditions as the estate then currently held.
- To sell, assign, exchange, transfer and convey, or otherwise dispose of, any or all of the investments and property, real, personal or mixed, that are included in, or may at any time become part of the trust or estate upon such terms and conditions as the fiduciary, in his absolute discretion, deems advisable, at either public or private sale, either for cash or deferred payments or other consideration, as the fiduciary determines. For the purpose of selling, assigning, exchanging, transferring, or conveying such investments and property, the fiduciary has the power to make, execute, acknowledge, and deliver any and all instruments of conveyance, deeds of trust, or assignments in such form and with warranties and covenants as the fiduciary deems expedient and proper; and in the event of any sale, conveyance, exchange, or other disposition of any of the trust or estate, the purchaser shall not be obligated in any way to see to the application of the purchase money or other consideration passing in connection therewith.
- To grant, sell, transfer, exchange, purchase, or acquire options of any kind on property held by such trust or estate or acquired or to be acquired by such trust or estate or held or owned by any other person.
- To lease any or all of the real estate that is included in or may at any time become a part of the trust or estate upon such terms and conditions as the fiduciary in his sole judgment and discretion deems advisable. Any lease made by the fiduciary may extend beyond the term of the trust or administration of the estate and, for the purpose of leasing such real estate, the fiduciary has the power to make, execute, acknowledge, and deliver any and all instruments, in such form and with such covenants and warranties as the fiduciary deems expedient and proper.
- To vote any stocks, bonds, or other securities held by the fiduciary at any meeting of stockholders, bondholders, or other security holders, and to delegate the power to so vote to attorneys-in-fact or proxies under power of attorney, restricted or unrestricted.
- To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as to the fiduciary seems advisable, including the power to borrow from the fiduciary, if the fiduciary is a bank, for the purpose of paying (i) debts, taxes, or other charges against the trust or estate or any part thereof and (ii) with prior approval of the court for any proper purpose of the trust or estate. The fiduciary has the power to mortgage or pledge such portion of the trust or estate as may be required to secure such loans and, as maker or endorser, to renew existing loans.
- To make loans or advancements to the executor or other representative of the grantor’s estate in case such executor or other representative is in need of cash with which to pay taxes, claims, or other indebtedness of the grantor’s estate; but no assets acquired from a qualified retirement benefit plan under § 2039(c) of the Internal Revenue Code shall be used to make such loans or advancements, and such assets shall be segregated and held separately until all claims against the estate for debts of the decedent or claims of administration have been satisfied. Such loans or advancements may be secured or unsecured, and the trustee is not liable in any way for any loss resulting to the trust or estate by reason of the exercise of this authority.
- To compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the trust or estate as the fiduciary deems best, and his decision is conclusive.
- To make distributions in cash or in kind or partly in each at valuations to be determined by the fiduciary, whose decision as to values shall be conclusive.
- To repair, alter, improve, renovate, reconstruct, or demolish any of the buildings on the real estate held by the fiduciary and to construct such buildings and improvements thereon as the fiduciary in his discretion deems advisable.
- To employ and compensate, out of the principal or income, or both as to the fiduciary seems proper, agents, accountants, brokers, attorneys-in-fact, attorneys-at-law, tax specialists, licensed real estate brokers, licensed salesmen, and other assistants and advisors deemed by the fiduciary to be needful for the proper administration of the trust or estate, and to do so without liability for any neglect, omission, misconduct, or default of any such agent or professional representative provided he was selected and retained with reasonable care.
- To rely upon any affidavit, certificate, letter, notice, telegram, or other paper or upon any telephone conversation believed by the fiduciary to be genuine and upon any other evidence believed by the fiduciary to be sufficient, and to be protected and held harmless for all payments or distributions required to be made hereunder if made in good faith and without actual notice or knowledge of the changed condition or status of any person receiving payments or other distributions upon a condition.
- To retain any interest held by the fiduciary in any business, whether as a stockholder or security holder of a corporation, a partner, a sole proprietor, or otherwise, for any length of time, without limitations, solely at the risk of the trust or estate and without liability on the part of the fiduciary for any losses resulting therefrom; including the power to (i) participate in the conduct of such business and take or delegate to others discretionary power to take any action with respect to its management and affairs that an individual could take as the owner of such business, including the voting of stock and the determination of any or all questions of policy; (ii) participate in any incorporation, reorganization, merger, consolidation, recapitalization, or liquidation of the business; (iii) invest additional capital in, subscribe to additional stock or securities of, and loan money or credit with or without security to, such business out of the trust or estate property; (iv) elect or employ as directors, officers, employees, or agents of such business, and compensate, any persons, including the fiduciary or a director, officer, or agent of the fiduciary; (v) accept as correct financial or other statements rendered by the business from time to time as to its conditions and operations except when having actual notice to the contrary; (vi) regard the business as an entity separate from the trust or estate with no duty to account to any court as to its operations; (vii) deal with and act for the business in any capacity, including any banking or trust capacity and the loaning of money out of the fiduciary’s own funds, and to be compensated therefor; and (viii) sell or liquidate such interest or any part thereof at any time. If any business shall be unincorporated, contractual and tort liabilities arising out of such business shall be satisfied, first, out of the business, and second, out of the trust or estate; but in no event shall there be a liability of the fiduciary, and if the fiduciary is held liable, the fiduciary is entitled to indemnification from, first, the business, and second, the trust or estate. The fiduciary is entitled to such additional compensation as is commensurate with the time, effort, and responsibility involved in his performance of services with respect to such business. Such compensation for services rendered to the business may be paid by the fiduciary from the business or from other assets or from both as the fiduciary, in his discretion, determines to be advisable; however, the amount of such additional compensation is subject to the final approval of the court.
- To do all other acts and things not inconsistent with the provisions of the will or trust in which these powers are incorporated that the fiduciary deems necessary or desirable for the proper management of the trusts herein created, in the same manner and to the same extent as an individual could do with respect to his own property.
- To hold property in the fiduciary’s name or in the name of nominees.
- During the minority, incapacity, or the disability of any beneficiary, and in the sole discretion of the fiduciary, to distribute income and principal to the beneficiary in any of the following ways: (i) directly to the beneficiary; (ii) to a relative, friend, guardian, conservator, or committee, to be expended by such person for the education, maintenance, support, or benefit of the beneficiary; (iii) by the fiduciary expending the same for the education, maintenance, support, or benefit of the beneficiary; (iv) to an adult person or bank authorized to exercise trust powers as custodian for a minor beneficiary under the Uniform Transfers to Minors Act (§ 64.2-1900 et seq.) to be held by such custodian under the terms of such act; or (v) to an adult person or bank authorized to exercise trust powers as custodial trustee for a beneficiary who is incapacitated as defined in § 64.2-900 , under the Uniform Custodial Trust Act (§ 64.2-900 et seq.) to be held as custodial trustee under the terms of such act.
- To continue and carry on any farming operation transferred to the fiduciary and to operate such farms and any other farm which may be acquired, including the power to (i) operate the farm with hired labor, tenants, or sharecroppers; (ii) hire a farm manager or a professional farm management service to supervise the farming operations; (iii) lease or rent the farm for cash or for a share of the crops; (iv) purchase or otherwise acquire farm machinery, equipment, and livestock; (v) construct, repair, and improve farm buildings of all sorts necessary, in the fiduciary’s judgment, for the operation of the farm; (vi) make loans or advances or to obtain loans or advances from any source, including the fiduciary at the prevailing rate of interest for farm purposes including for production, harvesting, or marketing, for the construction, repair, or improvement of farm buildings, or for the purchase of farm machinery, equipment, or livestock; (vii) employ approved soil conservation practices in order to conserve, improve, and maintain the fertility and productivity of the soil; (viii) protect, manage, and improve the timber and forest on the farm and sell the timber and forest products when it is to the best interest of the estate or trust; (ix) ditch and drain damp or wet fields and areas of the farm when needed; (x) engage in livestock production, if it is deemed advisable, and to construct such fences and buildings and plant such pastures and crops as may be necessary to carry on a livestock program; (xi) execute contracts, notes, and chattel mortgages relating to agriculture with the Commodity Credit Corporation, the United States Secretary of Agriculture, or any other officer or agency of the federal or state government, to enter into acreage reduction agreements, to make soil conservation commitments, and to do all acts necessary to cooperate with any governmental agricultural program; and (xii) in general, employ the methods of carrying on the farming operation that are in common use by the community in which the farm is located. As the duties that the fiduciary is requested to assume with respect to farming operations may considerably enlarge and increase the fiduciary’s usual responsibility and work as fiduciary, the fiduciary is entitled to such additional reasonable compensation as is commensurate with the time, effort, and responsibility involved in his performance of such services.
- To purchase and hold life insurance policies on the life of any beneficiary, or any person in whom the beneficiary has an insurable interest, and pay the premiums thereon out of income or principal as the fiduciary deems appropriate; provided, however, that the decision of the beneficiary of any trust otherwise meeting the requirements of § 2056(b)(5) of the Internal Revenue Code of 1954, as amended, shall control in respect to the purchase or holding of a life insurance policy by the trustee of such trust.
- To make any election, including any election permitted by statutes enacted after the date of execution of the will or trust instrument, authorized under any law requiring, or relating to the requirement for, payment of any taxes or assessments on assets or income of the estate or in connection with any fiduciary capacity, regardless of whether any property or income is received by or is under the control of the fiduciary, including, elections concerning the timing of payment of any such tax or assessment, the valuation of any property subject to any such tax or assessment, and the alternative use of items of deduction in computing any tax or assessment.
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To comply with environmental law:
- To inspect property held by the fiduciary, including interests in sole proprietorships, partnerships, or corporations and any assets owned by any such business enterprise, for the purpose of determining compliance with environmental law affecting such property and to respond to a change in, or any actual or threatened violation of, any environmental law affecting property held by the fiduciary;
- To take, on behalf of the estate or trust, any action necessary to respond to a change in, or prevent, abate, or otherwise remedy any actual or threatened violation of, any environmental law affecting property held by the fiduciary, either before or after the initiation of an enforcement action by any governmental body;
- To refuse to accept property in trust if the fiduciary determines that any property to be transferred to the trust either is contaminated by any hazardous substance or is being used or has been used for any activity directly or indirectly involving any hazardous substance which could result in liability to the trust or otherwise impair the value of the assets held therein;
- To disclaim any power granted by any document, statute, or rule of law that, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental law; and
- To charge the cost of any inspection, review, abatement, response, cleanup, or remedial action authorized herein against the income or principal of the trust or estate.
- To resign as fiduciary if the fiduciary reasonably believes that there is or may be a conflict of interest between him in his fiduciary capacity and in his individual capacity because of potential claims or liabilities which may be asserted against him on behalf of the trust or estate because of the type or condition of assets held therein.
- For the purposes of this section, unless the will or trust instrument expresses a contrary intention, the incorporation by reference of powers enumerated by this statute shall refer to those powers existing at the time of death and reference to powers under the Uniform Gifts to Minors Act in an instrument executed prior to July 1, 1989, shall be construed to refer to the Uniform Transfers to Minors Act (§ 64.2-1900 et seq.).
- This section shall not be construed to affect the application of the standard of judgment and care as set forth in the Uniform Prudent Investor Act (§ 64.2-780 et seq.).
- In the event that the will or trust instrument contains a provision in favor of a surviving spouse of the testator or grantor, the powers enumerated in this section shall not be construed or interpreted to cause the bequest to fail to qualify for the marital deduction permitted under the federal estate tax law, unless the will or trust instrument shall specifically provide to the contrary. A fiduciary acting under a construction or interpretation of a power, where such action is otherwise reasonable under the circumstances, shall incur no responsibility for acts taken in good faith that are otherwise thereafter contended to cause disqualification for the marital deduction. This subsection applies without regard to when the will or trust was executed or probated or when the testator died in relation to the effective date of this section or amendments thereto.
History. Code 1950, § 64-57.2; 1966, c. 425; 1968, c. 656, § 64.1-57; 1970, cc. 65, 296; 1972, c. 788; 1973, c. 94; 1974, c. 659; 1976, c. 419; 1982, cc. 525, 549, 551; 1989, c. 736; 1990, c. 782; 1992, c. 584; 1994, c. 476; 1997, c. 801; 1999, cc. 772, 975; 2003, cc. 30, 42, 253; 2012, c. 614.
Editor’s note.
26 U.S.C. § 2039(c), referred to in subdivision B 8 above, was repealed in 1986 by P.L. 99-514.
Law Review.
For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).
for the year 1971-1972, see 58 Va. L. Rev. 1363 (1972).
for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).
for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974).
for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976).
for the year 1979-1980, see 67 Va. L. Rev. 369 (1981).
for the year 1989, see 23 U. Rich. L. Rev. 859 (1989).
For article on the Uniform Custodial Trust Act, see 24 U. Rich. L. Rev. 65 (1989).
For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).
For survey article, “Wills, Trusts, and Estates,” see 44 U. Rich. L. Rev. 631 (2009).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.01 Introductory, et seq. Cox.
Virginia Forms (Matthew Bender). No. 13-715 Clause for Attorney’s Will Incorporating Agreement Regarding Law Practice; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-207 Bequest or Devise to Minor, et seq.; No. 15-301 Revocable Inter Vivos Trust Agreement, et seq.; No. 15-470 Order Granting Fiduciary Powers Pursuant to Va. Code Ann. § 64.2-106 .
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Executors and Administrators, § 60.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
“Prudent man rule” governs trustee’s obligations regarding productivity of assets. —
Although the management discretion afforded a trustee under this section and former § 55-253 et seq. is extensive, that discretion is subject to the requirements of the “prudent man rule” under former § 26-45.1; the restatement principles define a trustee’s obligations under the “prudent man rule” regarding productivity of trust assets. Sturgis v. Stinson, 241 Va. 531 , 404 S.E.2d 56, 7 Va. Law Rep. 2395, 1991 Va. LEXIS 68 (1991).
Executor of decedent’s estate may seek accounting by trustees. —
By incorporating the powers listed in § 64.1-57, a testator does not thereby exclude “all other powers granted by law” from the executor. The right to compel an accounting from trustees is such an “other power granted by law” pursuant to §§ 8.01-31 and 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308, 2006 Va. LEXIS 52 (2006).
Fiduciaries not liable for actions of agents. —
The language of subdivision (1) (k) evinces an intent of the legislature to shield certain fiduciaries from liability for the actions of the agents they select to aid them in the administration of their duties but does not preclude a fiduciary from being liable for his own negligent conduct. Roberts v. Roberts, 260 Va. 660 , 536 S.E.2d 714, 2000 Va. LEXIS 146 (2000).
Subdivision (1) (k), shielding fiduciaries from liability for the acts or omissions of agents hired to assist in the administration of the trust or estate, would be rendered meaningless if a fiduciary could hire an agent whose expertise is essential to managing an estate or trust and then be held liable for relying on the expertise provided by that agent. Roberts v. Roberts, 260 Va. 660 , 536 S.E.2d 714, 2000 Va. LEXIS 146 (2000).
Executor insulated from liability for acts of agent. —
A surcharge was improperly assessed against the executor of an estate for failing to include certain bearer bonds in the estate tax return, which had resulted in a deficiency being charged against the estate by the Internal Revenue Service, where the executor, when he realized that administration of the estate was well beyond his expertise, had hired a bank to act as his agent and prepare the estate tax return. Roberts v. Roberts, 260 Va. 660 , 536 S.E.2d 714, 2000 Va. LEXIS 146 (2000).
“Estate” in subdivision (1)(b) included decedent’s real property. —
Circuit court erred in its restrictive interpretation of the term “estate” in subdivision (1)(b) of § 64.1-57 as not including real property owned by the intestate decedent at the time of her death. Although title to the real property vested immediately in her heirs, it was still part of the estate and could be sold by the administrator if he was granted the power pursuant to § 64.1-57.1.In re Bullock, 2003 Va. LEXIS 118 (Va. Apr. 17, 2003).
CIRCUIT COURT OPINIONS
Editor’s note. The cases below were decided under former Title 64.1 and prior law.
Power to sell assets granted. —
Due to the fact that the value of claims against the estate exceeded the value of assets on hand, the executor was granted the powers enumerated in § 64.1-57(1)(b), (1)(b1) to sell assets to raise the funds needed. In re Estate of Carter, 58 Va. Cir. 555, 2002 Va. Cir. LEXIS 176 (Louisa County July 1, 2002).
No authority to purchase real estate from own trust. —
In a trustee’s suit against his sisters for the conveyance of lots that he bought from his mother due to her need for funds, the court held that the trustee was not entitled to the lots because, pursuant to this section, he could not purchase real estate from his own trust. Baldwin v. Harper, 2003 Va. Cir. LEXIS 368 (Nelson County Oct. 17, 2003).
No contract for trustee to purchase lots from trust. —
In a trustee’s action against defendants for the conveyance of two lots that he purchased from the trust, the court awarded judgment to defendants pursuant to this section because there was no contract between the trustee and the beneficiary for the purchase of the lots. Because there was no contract, there could be no credit to the trustee for money paid or advanced. Baldwin v. Harper, 2004 Va. Cir. LEXIS 266 (Nelson County Feb. 4, 2004).
No authority to sell property not in estate under will. —
Section 64.1-57 (1) (b) clearly and unambiguously allows a court to grant to a personal representative the power to sell real property which may be included in, or may at any time become part of an estate, but this does not include real property which a decedent has not made part of her estate, under the terms of her will. In re Estate of Trent, 58 Va. Cir. 83, 2001 Va. Cir. LEXIS 395 (Richmond Nov. 27, 2001).
No authority to convey trust property without consideration. —
Predecessor trustee’s transfer of a home owned by the trust without consideration was authorized because, although § 64.1-57 did not authorize the conveyance of trust property without consideration, the deed that transferred the home to the trust was a valid amendment to the trust, and authorized the predecessor trustee’s transfer of the home. Pitzer v. Martin, 2007 Va. Cir. LEXIS 261 (Fairfax County Dec. 5, 2007).
No oral contract for occupancy found. —
Trial court granted a trust the possession of a residence because the court found that there was not an oral contract between the trust and the occupant of the residence that permitted the occupant to reside therein absent a written lease. Furthermore, the trust incorporated the statutory provision giving the trustee absolute discretion in the management of the trust. Stanley v. Stanley, 102 Va. Cir. 366, 2019 Va. Cir. LEXIS 353 (Orange County Aug. 16, 2019).
OPINIONS OF THE ATTORNEY GENERAL
Distribution by fiduciary to custodial trustee does not require court approval. —
Section 55-34.5 does not require a fiduciary exercising administrative power under § 64.1-57(1)(p)(5) to obtain court approval before distributing to a custodial trustee under the Virginia Uniform Custodial Trust Act an amount in excess of $10,000. See opinion of Attorney General to The Honorable William J. Howell, Member, House of Delegates, 00-017 (4/18/00).
§ 64.2-106. Grant of certain powers to personal representative or trustee by circuit court.
- Upon the motion of a personal representative or trustee, a circuit court may grant to the personal representative or trustee all or a part of the powers that may be incorporated by reference pursuant to § 64.2-105 . If there is more than one personal representative or trustee, the court may specify as to whether the consent of all personal representatives or trustees or a majority thereof shall be required to act, and in absence of such specification, the consent of all such personal representatives or trustees to act shall be required.
- Such motion shall be filed in the circuit court in which the personal representative or trustee qualified, or if there was no qualification, the circuit court for the jurisdiction in which the grantor resides or resided at the time of his death, a trustee resides, or a corporate trustee has an office. Such motion may be ex parte; however, the court, in its discretion, may require such notice to and the convening of interested parties as it may deem proper in each case. Notwithstanding the granting of or the failure to grant such powers, the court shall have continuing jurisdiction to confer powers in addition to those previously granted or to revoke any or all such powers previously granted by the court. Such additional grant or revocation may also be ex parte.
- The court may, in granting or withholding such powers, consider (i) whether the personal representative or trustee was nominated by the decedent, the grantor, or the beneficiaries; (ii) the number and capacity of the beneficiaries and their ability or inability to consent to the acts of the personal representative or trustee which are otherwise within the scope of § 64.2-105 ; (iii) the relationship of the personal representative or trustee to the beneficiaries; (iv) the character of the estate to be administered, including any real estate which would be within the scope of the powers granted by the provisions of § 64.2-106 ; and (v) the capacity of the personal representative or trustee to perform under the powers conferred and to answer for any acts for which he might be held accountable under his bond.The court, in its discretion, may attach further conditions to such grant of power in any manner which it shall deem necessary and proper.
- In no case shall a court grant any powers, if the grant of such powers would be contrary to the intention of the testator or grantor as implied from or as expressed in the will or trust instrument, or would otherwise be inconsistent with the disposition made in the will or trust instrument.
History. 1976, c. 437, § 64.1-57.1; 1985, c. 345; 1988, c. 345; 1999, c. 995; 2012, c. 614.
Law Review.
For survey of Virginia law on trusts and estates for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976).
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
For survey article, “Wills, Trusts, and Estates,” see 44 U. Rich. L. Rev. 631 (2009).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 25 Personal Representatives; Rights and Duties. § 25.01 Introductory, et seq. Cox.
Virginia Forms (Matthew Bender). No. 15-470 Order Granting Fiduciary Powers Pursuant to Va. Code Ann. § 64.2-106 .
CASE NOTES
Trial court’s obligations in domestic matter when conservator was appointed. —
Upon notification that a husband had died, it was incumbent upon the court to abate the action, transfer the funds in the possession of the conservator to husband’s personal representative, and determine the reasonable amount of the conservator’s fee for which husband was responsible. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426, 2004 Va. App. LEXIS 454 (2004) (decided under prior law).
Administrator could sell real property belonging to the decedent. —
Circuit court erred in its restrictive interpretation of the term “estate” in subdivision (1)(b) of § 64.1-57 as not including real property owned by the intestate decedent at the time of her death. Although title to the real property vested immediately in her heirs, it was still part of the estate and could be sold by the administrator if he was granted the power pursuant to § 64.1-57.1.In re Bullock, 2003 Va. LEXIS 118 (Va. Apr. 17, 2003) (decided under prior law).
CIRCUIT COURT OPINIONS
Administrator could not be granted the power to sell real property that testatrix did not make part of her estate. —
Section 64.1-57 does not allow an administrator to sell real property that is not part of a decedent’s estate; thus, where a testatrix’s will directed the payment of her debts, but did not make her real property part of her estate, the real property vested in her devisees upon her death, and, accordingly, the trial court denied the estate administrator’s petition pursuant to §§ 64.1-57 (1) (b) and 64.1-57.1, to grant the administrator the power to sell the real property to satisfy the debts of the estate. In re Estate of Trent, 58 Va. Cir. 83, 2001 Va. Cir. LEXIS 395 (Richmond Nov. 27, 2001) (decided under prior law).
Spouse granted limited powers. —
Spouse was properly granted only a limited power to convey a home owned by a decedent to the decedent’s children in light of the relationship among the beneficiaries; the spouse was denied more extensive powers under § 64.1-57.1.Estate of Spears v. Spears, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008) (decided under prior law).
§ 64.2-107. Power granted to personal representatives to make election regarding marital deduction as to certain qualifying terminable interest property; binding effect of election.
- For purposes of this section, “personal representative” includes the trustee of a qualified terminable interest property trust if there has been no qualification of a personal representative for the estate of the decedent who created the trust.
- Personal representatives, whether heretofore or hereafter qualified, are hereby granted the power to make the election on the return of their decedents as required pursuant to § 2056(b)(7) of the Internal Revenue Code of 1954, as amended, to obtain the marital deduction for bequests or devises of qualifying terminable interest property in favor of the surviving spouse created under a will or inter vivos trust of the decedent.
- If the personal representative determines in good faith to make or not to make such an election and does not act imprudently in making such decision, the decision shall be final and binding upon all of the beneficiaries of the estate.
History. 1982, c. 551, § 64.1-57.2; 1983, c. 54; 1999, c. 197; 2012, c. 614.
§ 64.2-108. Power granted to personal representatives and trustees to donate conservation or open-space easements.
Personal representatives and trustees, whether heretofore or hereafter qualified or appointed, are hereby granted the power to donate a conservation easement as provided in the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or an open-space easement as provided in the Open-Space Land Act (§ 10.1-1700 et seq.) on any real property of their decedents and settlors, in order to obtain the benefit of the estate tax exclusion allowed under § 2031(c) of the Internal Revenue Code of 1986, as amended, provided they have the written consent of all of the heirs, beneficiaries, and devisees whose interests are affected thereby. Upon petition of the personal representative or trustee, the circuit court may give consent on behalf of any unborn, unascertained, or incapacitated heirs, beneficiaries, or devisees whose interests are affected thereby after determining that (i) the donation of the conservation easement will not adversely affect such heirs, beneficiaries, or devisees or (ii) it is more likely than not that such heirs, beneficiaries, or devisees would consent if they were before the court and capable of giving consent. A guardian ad litem shall be appointed to represent the interests of any unborn, unascertained, or incapacitated persons.
History. 1999, cc. 503, 527, § 64.1-57.3; 2009, c. 588; 2012, c. 614.
Law Review.
For survey article, “Wills, Trusts, and Estates,” see 44 U. Rich. L. Rev. 631 (2009).
Research References.
Virginia Forms (Matthew Bender). No. 16-576 Deed of Gift of Conservation Easement, et seq.; No. 16-6030 Certificate of Trust.
§ 64.2-108.1. References to former sections, articles, or chapters.
When any will, trust instrument, power of attorney, or other instrument refers to a section of the Code that, at the time the reference was made in the will, trust instrument, power of attorney, or other instrument, had been repealed and transferred in the same or a modified form to a new section, article, or chapter in Title 64.2, the reference shall be construed to refer to the latter in the absence of any intent to the contrary.
History. 2013, c. 89.
The number of this section was assigned by the Virginia Code Commission, the number in the 2013 act having been § 64.2-109 .
Law Review.
For annual survey article, see “Wills, Trusts, and Estates,” 48 U. Rich. L. Rev. 189 (2013).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 16 Construction of the Will. § 16.07 The Law Applicable; Chapter 25 Personal Representatives; Rights and Duties. § 25.03 Powers of Personal Representatives — Incorporation by Reference. Cox.
§ 64.2-108.2. Provision in certain trust void.
- For purposes of this section, “medical assistance” and “medical assistance benefits” mean benefits payable under the state plan for medical assistance services.
- Except as provided in subsection C, a provision in any inter vivos trust created for the benefit of the grantor that provides directly or indirectly for the suspension, termination, or diversion of the principal, income, or other beneficial interest of the grantor in the event that he should apply for medical assistance or require medical, hospital, or nursing care or long-term custodial, nursing, or medical care shall be against public policy and ineffective as against the Commonwealth. The assets of the trust, both principal and interest, shall be distributed as though no such application had been made. The provisions of this subsection shall apply without regard to the irrevocability of the trust or the purpose for which the trust was created.
- Subsection B shall not apply to any trust with a corpus of $25,000 or less. If the corpus of any such trust exceeds $25,000, $25,000 of the trust shall be exempt from the provisions of subsection B. However, if the grantor has created more than one trust as described in subsection B, the $25,000 exemption shall be prorated among the trusts. Further, if the grantor made uncompensated transfers, as defined in § 20-88.02 , within 30 months of applying for Medicaid benefits and no payments were ordered pursuant to subsection D of § 20-88.02 , the $25,000 exemption under this subsection shall not apply.
- The exemption provided by subsection C shall not apply to any trust created on or after August 11, 1993.
- To the extent any trust created between August 11, 1993, and July 1, 1994 would but for subsection D be entitled to the exemption provided by subsection C, the grantor may revoke such trust notwithstanding any irrevocability in the terms of such trust. Nothing contained in this subsection shall be construed to authorize the grantor to effect the vested rights of any beneficiary of such trust without the express written consent of such beneficiary.
- The provisions of subsection B shall not apply to an irrevocable inter vivos trust to the extent it is created for the purpose of paying the grantor’s funeral and burial expenses and is funded in an amount and manner allowable as a resource in determining eligibility for medical assistance benefits. In the event any amount remains in the trust upon payment of the funeral or burial arrangements provided to or on behalf of such individual, the Commonwealth shall receive all amounts remaining in such trust up to an amount equal to the total medical assistance paid on behalf of the individual.
History. 1993, c. 701, § 55-19.5; 1994, c. 692; 1998, c. 735; 2019, c. 712.
Editor’s note.
Acts 2019, c. 712, effective October 1, 2019, recodified former Title 55 as Title 55.1. As part of the recodification, former § 55-19.5 was relocated to Title 64.2 as this section.
Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”
Article 3. Privacy Expectation Afterlife and Choices Act.
§§ 64.2-109 through 64.2-115. Repealed by Acts 2017, cc. 33 and 80, cl. 2.
Cross references.
For current similar provisions, see § 64.2-116 et seq.
Editor’s note.
Former §§ 64.2-109 through 64.2-115, regarding the Privacy Expectation Afterlife and Choices Act, were derived from Acts 2013, cc. 280, 369; 2015, c. 657.
Article 3.1. Uniform Fiduciary Access to Digital Assets Act.
§ 64.2-116. Definitions.
As used in this article, unless the context requires otherwise:
“Account” means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.
“Agent” means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise. “Agent” includes an original agent, a coagent, a successor agent, and a person to which an agent’s authority is delegated.
“Carries” means engages in the transmission of an electronic communication.
“Catalog of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.
“Conservator” means a person appointed by a court to manage the estate of a living individual. “Conservator” includes a limited conservator.
“Content of an electronic communication” means information concerning the substance or meaning of the communication that (i) has been sent or received by a user; (ii) is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and (iii) is not readily accessible to the public.
“Court” means the circuit court for the county or city having jurisdiction over the fiduciary in matters relating to the content of this article.
“Custodian” means a person who carries, maintains, processes, receives, or stores a digital asset of a user.
“Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user.
“Digital asset” means an electronic record in which an individual has a right or interest. “Digital asset” does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
“Electronic communication” has the same meaning as the definition provided in 18 U.S.C. § 2510(12).
“Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.
“Fiduciary” means an original, additional, or successor personal representative, conservator, guardian, agent, or trustee.
“Guardian” means a person appointed by a court to manage the person of a living individual adult pursuant to Chapter 20 (§ 64.2-2000 et seq.) or a person appointed by a court to manage the estate of a minor pursuant to Chapter 17 (§ 64.2-1700 et seq.). “Guardian” includes a limited guardian.
“Information” means data, text, images, videos, sounds, codes, computer programs, software, databases, or something that is substantially similar.
“Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
“Person” means an individual; estate; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity.
“Personal representative” means an executor, administrator, curator, designated successor or successor under the Virginia Small Estate Act (§ 64.2-600 et seq.), or person that performs substantially the same function under the laws of the Commonwealth other than this article.
“Power of attorney” means a record that grants an agent authority to act in the place of a principal.
“Principal” means an individual who grants authority to an agent in a power of attorney.
“Protected person” means an individual for whom a conservator or guardian has been appointed. “Protected person” includes an individual for whom an application for the appointment of a conservator or guardian is pending.
“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
“Remote computing service” means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. § 2510(14).
“Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian.
“Trustee” means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. “Trustee” includes a successor trustee.
“User” means a person that has an account with a custodian.
“Will” includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument.
History. 2017, cc. 33, 80.
Uniform law cross references.
Arizona: A.R.S. § 14-13101 et seq.
California: Cal Prob Code § 870 et seq.
Colorado: C.R.S. 15-1-1501 et seq.
Hawaii: HRS § 556A-1 et seq.
Idaho: Idaho Code § 15-14-101 et seq.
Illinois: 755 ILCS 70/1 et seq.
Indiana: Burns Ind. Code Ann. § 32-39-1-1 et seq.
Minnesota: Minn. Stat. § 521A.01 et seq.
Nebraska: R.R.S. Neb. § 30-501 et seq.
North Carolina: N.C. Gen. Stat. § 36F-1 et seq.
Tennessee: Tenn. Code Ann. § 35-8-101 et seq.
Washington: Rev. Code Wash. (ARCW) § 11.120.010 et seq.
Wyoming: Wyo. Stat. § 2-3-1001 et seq.
Law Review.
For article, “Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets,” see 24 Geo. Mason L. Rev. 183 (2016).
§ 64.2-117. Applicability.
-
This article applies to:
- A fiduciary acting under a will or power of attorney executed before, on, or after July 1, 2017;
- A personal representative acting for a decedent who died before, on, or after July 1, 2017;
- A conservatorship proceeding commenced before, on, or after July 1, 2017;
- A guardianship proceeding commenced before, on, or after July 1, 2017; and
- A trustee acting under a trust created before, on, or after July 1, 2017.
- This article applies to a custodian if the user resides in the Commonwealth or resided in the Commonwealth at the time of the user’s death.
- This article does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.
History. 2017, cc. 33, 80.
§ 64.2-118. User direction for disclosure of digital assets.
- A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
- If a user has not used an online tool to give direction under subsection A or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
- A user’s direction under subsection A or B overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.
History. 2017, cc. 33, 80.
§ 64.2-119. Terms-of-service agreement.
- This article does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
- This article does not give a fiduciary or a designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
- A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under § 64.2-118 .
History. 2017, cc. 33, 80.
§ 64.2-120. Procedure for disclosing digital assets.
-
When disclosing digital assets of a user under this article, the custodian may, at its sole discretion:
- Grant a fiduciary or designated recipient full access to the user’s account;
- Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
- Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
- A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this article.
- A custodian need not disclose under this article a digital asset deleted by a user.
-
If a user directs or a fiduciary requests a custodian to disclose under this article some, but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian.
If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
- A subset limited by date of the user’s digital assets;
- All of the user’s digital assets to the fiduciary or designated recipient;
- None of the user’s digital assets; or
- All of the user’s digital assets to the court for review in camera.
History. 2017, cc. 33, 80.
§ 64.2-121. Disclosure of content of electronic communications of deceased user.
If a deceased user consented to or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of electronic communications sent or received by the user if the representative gives the custodian:
- A written request for disclosure in physical or electronic form;
- A certified copy of the death certificate of the user;
- A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order;
- Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
- Evidence linking the account to the user; or
- A finding by the court that (i) the user had a specific account with the custodian, identifiable by the information specified in subdivision a; (ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. § 2701 et seq., 47 U.S.C. § 222, or other applicable law; (iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or (iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
History. 2017, cc. 33, 80.
§ 64.2-122. Disclosure of other digital assets of deceased user.
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:
- A written request for disclosure in physical or electronic form;
- A certified copy of the death certificate of the user;
- A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
- Evidence linking the account to the user;
- An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or
- A finding by the court that (i) the user had a specific account with the custodian, identifiable by the information specified in subdivision a or (ii) disclosure of the user’s digital assets is reasonably necessary for administration of the estate.
History. 2017, cc. 33, 80.
§ 64.2-123. Disclosure of content of electronic communications of principal.
To the extent that a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:
- A written request for disclosure in physical or electronic form;
- An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
- A certification by the agent that the power of attorney is in effect; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
- Evidence linking the account to the principal.
History. 2017, cc. 33, 80.
§ 64.2-124. Disclosure of other digital assets of principal.
Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalog of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:
- A written request for disclosure in physical or electronic form;
- An original or copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
- A certification by the agent that the power of attorney is in effect; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
- Evidence linking the account to the principal.
History. 2017, cc. 33, 80.
§ 64.2-125. Disclosure of digital assets held in trust when trustee is original user.
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications.
History. 2017, cc. 33, 80.
§ 64.2-126. Disclosure of contents of electronic communications held in trust when trustee is not original user.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of electronic communications sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
- A written request for disclosure in physical or electronic form;
- A certified copy of the trust instrument, or a certification of the trust under § 64.2-804 that includes consent to disclosure of the content of electronic communications to the trustee;
- A certification by the trustee that the trust exists and the trustee is a currently acting trustee of the trust; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
- Evidence linking the account to the trust.
History. 2017, cc. 33, 80.
§ 64.2-127. Disclosure of other digital assets held in trust when trustee is not original user.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalog of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
- A written request for disclosure in physical or electronic form;
- A certified copy of the trust instrument or a certification of the trust under § 64.2-804 ;
- A certification by the trustee that the trust exists and the trustee is a currently acting trustee of the trust; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
- Evidence linking the account to the trust.
History. 2017, cc. 33, 80.
§ 64.2-128. Disclosure of digital assets to conservator or guardian of protected person.
- After an opportunity for a hearing under Chapter 20 (§ 64.2-2000 et seq.), the court may grant a conservator or guardian access to the digital assets of a protected person.
-
Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator or guardian the catalog of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic
communications, in which the protected person has a right or interest if the conservator or guardian gives the custodian:
- A written request for disclosure in physical or electronic form;
- A certified copy of the court order that gives the conservator or guardian authority over the digital assets of the protected person; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
- Evidence linking the account to the protected person.
- A conservator with general authority to manage the assets of a protected person or a guardian with specific authority granted by the court may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section shall be accompanied by a certified copy of the court order giving the conservator or guardian authority over the protected person’s property.
History. 2017, cc. 33, 80.
§ 64.2-129. Fiduciary duty and authority.
-
The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
- The duty of care;
- The duty of loyalty; and
- The duty of confidentiality.
-
A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:
- Except as otherwise provided in § 64.2-118 , is subject to the applicable terms-of-service agreement;
- Is subject to other applicable law, including copyright law;
- In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
- May not be used to impersonate the user.
- A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
- A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer-fraud and unauthorized computer-access laws, including Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2.
-
A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor:
- Has the right to access the property and any digital asset stored in it; and
- Is an authorized user for the purposes of computer-fraud and unauthorized computer-access laws, including Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2.
- A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
-
A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:
- If the user is deceased, a certified copy of the death certificate of the user;
- A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority over the account; and
-
If requested by the custodian:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
- Evidence linking the account to the user; or
- A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subdivision a.
History. 2017, cc. 33, 80.
§ 64.2-130. Custodian compliance and immunity.
- Not later than 60 days after receipt of the information required under §§ 64.2-121 through 64.2-129 , a custodian shall comply with a request under this article from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
- An order under subsection A directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. § 2702.
- A custodian may notify the user that a request for disclosure or to terminate an account was made under this article.
- A custodian may deny a request under this article from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s request.
-
This article does not limit a custodian’s ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this article to obtain a court order that:
- Specifies that an account belongs to a protected person or principal;
- Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
- Contains a finding required by law other than this article.
- A custodian and its officer, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this article.
History. 2017, cc. 33, 80.
§ 64.2-131. Uniformity of application and construction.
In applying and construing this article, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
History. 2017, cc. 33, 80.
§ 64.2-132. Relation to Electronic Signatures in Global and National Commerce Act.
This article modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, 15 U.S.C. § 7003(b).
History. 2017, cc. 33, 80.
Subtitle II. Wills and Decedents’ Estates.
Chapter 2. Descent and Distribution.
§ 64.2-200. Course of descents generally; right of Commonwealth if no other heir.
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The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:
- To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent’s children and their descendants, and one-third of the estate descends and passes to the surviving spouse.
- If there is no surviving spouse, then the estate descends and passes to the decedent’s children and their descendants.
- If there is none of the foregoing, then to the decedent’s parents, or to the surviving parent.
- If there is none of the foregoing, then to the decedent’s siblings, and their descendants.
-
If there is none of the foregoing, then one-half of the estate descends and passes to the kindred of one of the decedent’s parents and one-half descends and passes to the kindred of the other of the decedent’s parents in the following course:
- To the decedent’s grandparents, or to the surviving grandparent.
- If there is none of the foregoing, then to the decedent’s uncles and aunts, and their descendants.
- If there is none of the foregoing, then to the decedent’s great-grandparents.
- If there is none of the foregoing, then to the siblings of the decedent’s grandparents, and their descendants.
- And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.
- If there are no surviving kindred of one of the decedent’s parents, the whole estate descends and passes to the surviving kindred of the other of the decedent’s parents. If there are no kindred of either parent, the whole estate descends and passes to the kindred of the decedent’s most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse’s death, as if such spouse had died intestate and entitled to the estate.
- If there is no other heir of a decedent’s real estate, such real estate is subject to escheat to the Commonwealth in accordance with Chapter 24 (§ 55.1-2400 et seq.) of Title 55.1.
History. Code 1950, § 64-1 ; 1956, c. 109; 1968, c. 656, § 64.1-1; 1977, c. 474; 1982, c. 304; 1985, c. 189; 1990, c. 831; 2012, c. 614; 2020, c. 900.
Editor’s note.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “Chapter 24 (§ 55.1-2400 et seq.) of Title 55.1” for “Chapter 10 (§ 55-168 et seq.) of Title 55.”
The 2020 amendments.
The 2020 amendment by c. 900, in subdivision A 4 and in subdivision A 5 d, substituted “siblings” for “brothers and sisters”; in subdivision A 5, substituted “kindred of one of the decedent’s parents” for “paternal kindred” and “kindred of the other of the decedent’s parents” for “maternal kindred of the decedent”; in subsection B, substituted “If there are no surviving kindred of one of the decedent’s parents, the whole estate descends and passes to the surviving kindred of the other of the decedent’s parents” for “If there are either no surviving paternal kindred or no surviving maternal kindred, the whole estate descends and passes to the paternal or maternal kindred who survive the decedent” in the first sentence and “no kindred of either parent” for “neither maternal nor paternal kindred” in the second sentence.
Law Review.
For comment on right of election against a foreign testator’s will, see 25 Wash. & Lee L. Rev. 328 (1968).
For survey of Virginia law on wills, trusts and estates for the year 1967-1978, see 54 Va. L. Rev. 1664 (1968).
for the year 1968-1969, see 55 Va. L. Rev. 1534 (1969).
for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For 1985 survey of Virginia wills, trusts, and estate law, see 19 U. Rich L. Rev. 779 (1985).
For annual survey of Virginia law article, “Wills, Trusts, and Estates,” see 47 U. Rich. L. Rev. 343 (2012).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. 2A.03 The Elective Share — Decedent Dying Before January 1, 2001, et seq. Cox.
Virginia Forms (Matthew Bender). No. 6-301 Complaint to Construe a Will; No. 15-105 Will Directing that Property Shall Pass According to Laws of Descent and Distribution; No. 15-207 Bequest or Devise to Minor; No. 15-427 List of Heirs, et seq.; No. 16-512 Deed by Heirs; No. 16-2001 Affidavit of Heirs — Establishing Ownership, et seq.
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Executors and Administrators, § 18.
CASE NOTES
Editor’s note.
Most of the cases below were decided under former Title 64.1 and prior law.
Construction of “next of kin.” —
A court may loosely describe as “next of kin” the parties who, in a particular instance, are the ones who take under the statute, but when the actual phrase is employed in an instrument it is to be construed strictly, in its commonly accepted meaning, as nearest in blood. Fletcher v. Washington & Lee Univ., 706 F.2d 475, 1983 U.S. App. LEXIS 28453 (4th Cir. 1983).
“Kindred” similar to “next of kin.” —
“Kindred” is not a highly technical term whose primary meaning is determined by reference to the statute of descent and distribution. It is similar to the phrase “next of kin,” which is a nontechnical term whose commonly accepted meaning is “nearest in blood.” Elmore v. Virginia Nat'l Bank, 232 Va. 310 , 350 S.E.2d 603, 3 Va. Law Rep. 1275, 1986 Va. LEXIS 258 (1986).
“Kindred” retains its commonly accepted meaning when used in an instrument. Elmore v. Virginia Nat'l Bank, 232 Va. 310 , 350 S.E.2d 603, 3 Va. Law Rep. 1275, 1986 Va. LEXIS 258 (1986).
Phrase “nearest living paternal kindred” in a trust agreement referred, to those blood relatives on her father’s side in the closest degree of kinship to the grantor. Elmore v. Virginia Nat'l Bank, 232 Va. 310 , 350 S.E.2d 603, 3 Va. Law Rep. 1275, 1986 Va. LEXIS 258 (1986).
The common-law course of descent is entirely repealed and abrogated. Tomlinson v. Dilliard, 7 Va. (3 Call) 105, 1801 Va. LEXIS 29 (1801); Browne v. Turberville, 6 Va. (2 Call) 390, 1800 Va. LEXIS 35 (1800); Stones v. Keeling, 9 Va. (5 Call) 143, 1804 Va. LEXIS 13 (1804); Owen v. Cogbill, 14 Va. (4 Hen. & M.) 487, 1810 Va. LEXIS 21 (1810); Dilliard v. Tomlinson, 15 Va. (1 Munf) 183, 1810 Va. LEXIS 49 (1810); Templeman v. Steptoe, 15 Va. (1 Munf) 339, 1810 Va. LEXIS 59 (1810); Addison v. Core's Adm'r, 16 Va. (2 Munf) 279, 1811 Va. LEXIS 47 (1811); Davis v. Rowe, 27 Va. (6 Rand.) 355, 1828 Va. LEXIS 23 (1828); Garland v. Harrison, 35 Va. (8 Leigh) 368, 1837 Va. LEXIS 26 (1837); Medley v. Medley, 81 Va. 265 , 1886 Va. LEXIS 95 (1886).
This section abrogated the whole of the common-law regulating descents. However, this was with regard to statutory descent, intestacy. Fletcher v. Washington & Lee Univ., 706 F.2d 475, 1983 U.S. App. LEXIS 28453 (4th Cir. 1983).
This section did not purport to change the meaning of recognized common-law words, even when they were used in a will. Fletcher v. Washington & Lee Univ., 706 F.2d 475, 1983 U.S. App. LEXIS 28453 (4th Cir. 1983).
Descent in Virginia is fixed by statute. Common-law analogies are not helpful, as that system has been superseded by statute, and with it went primogeniture and all its concepts of feudal tenure. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316, 1941 Va. LEXIS 146 (1941).
Legislature may change course of descents. —
The legislature may, from time to time, change the course relating to descents and distributions. McFadden v. McNorton, 193 Va. 455 , 69 S.E.2d 445, 1952 Va. LEXIS 154 (1952).
Statutes of descent should be construed as a whole and so as to give effect to the obvious intent of the legislature. Browne v. Turberville, 6 Va. (2 Call) 390, 1800 Va. LEXIS 35 (1800).
Statute in force at the time of death of an intestate governs the disposition of his estate. Harrison v. Allen, 7 Va. (3 Call) 289, 1802 Va. LEXIS 27 (1802); Dilliard v. Tomlinson, 15 Va. (1 Munf) 183, 1810 Va. LEXIS 49 (1810); Hauenstein v. Lynham, 69 Va. (28 Gratt.) 62, 1877 Va. LEXIS 54 (1877), rev'd, 100 U.S. 483, 25 L. Ed. 628, 1879 U.S. LEXIS 1841 (1880).
Therefore the statute of descents does not have a retrospective operation. Dickinson v. Holloway, 20 Va. (6 Munf) 422, 1819 Va. LEXIS 42 (1819); Blankenbeker v. Blankenbeker, 20 Va. (6 Munf) 427, 1819 Va. LEXIS 44 (1819).
Theory of the statute of descent and distribution is that the estate of the ancestor at his death, subject to the rights of the widow if there be one, passes in coparcenary equally to his children. Corbitt v. Wright, 120 Va. 471 , 91 S.E. 612 , 1917 Va. LEXIS 132 (1917).
New classes in the course of descents cannot be constructed out of the subsequent explanatory provisions (§§ 64.1-2 through 64.1-10) and contrary to the previously established course of descents generally, as prescribed by this section. Moore v. Conner, 20 S.E. 936 , 1890 Va. LEXIS 119 (Va. 1890).
In every case arising under the statute of descents, reference must first be had to this section to ascertain to which class it belongs. The other divisions (§§ 64.1-2 through 64.1-10) are but explanatory of how the estate shall be partitioned under the proper class when discovered, especially when some of those entitled to take are descendants of deceased members of the class or some of the class are collaterals of the half blood. Moore v. Conner, 20 S.E. 936 , 1890 Va. LEXIS 119 (Va. 1890).
Fifth paragraph of this section is mandatory, requiring that one moiety go to the paternal and one moiety go to the maternal kindred, and § 64.1-3 cannot be applied until after the estate has been divided into moieties. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316, 1941 Va. LEXIS 146 (1941).
After a division is made into moieties pursuant to the fifth paragraph of this section, each moiety goes to the proper kindred as a class, on the paternal and maternal side respectively, and there is no further division into moieties as between the branches of paternal and maternal kindred. Furthermore, each moiety keeps on its own side, regardless of the other, so long as there are any kindred, however remote, on that side. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316, 1941 Va. LEXIS 146 (1941).
Determination of distribution. —
Because the decedent had no surviving spouse, no children, no surviving parents, and neither a surviving brother or sister nor a brother or sister who had descendants, the statute required the decedent’s estate to be divided into two separate, equally valued moieties, the decedent’s paternal side moiety passed to the half-uncle, and the decedent’s maternal side moiety passed to the decedent’s fourteen second cousins. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409, 2014 Va. LEXIS 56 (2014).
Circuit court properly denied an executor’s plea in bar regarding the standing of the decedent’s niece to object to the decedent’s will because the executor did not attack her standing, she was an heir at law and a named beneficiary in the will, and the release that she signed was invalid as a mere instrument of executor’s fraudulent scheme to obtain the decedent’s $1.3 million-dollar estate. Machen v. Williams, 299 Va. 701 , 858 S.E.2d 203, 2021 Va. LEXIS 89 (2021).
Term “title” was not used in the statute in a strict an technical sense, but rather in the more comprehensive sense of any interest in an estate of inheritance, to which an intestate may die entitled. Medley v. Medley, 81 Va. 265 , 1886 Va. LEXIS 95 (1886).
An equitable interest in real estate descends to the owner’s heirs just as a legal estate. Ratliff v. Ratliff, 102 Va. 880 , 47 S.E. 1007 , 1904 Va. LEXIS 49 (1904).
Executory devises are not mere possibilities, but substantial interest, and as respects transmissibility, stand on the same footing with contingent remainders. That is, if the contingency whereon the vesting depends, is a collateral event irrespective of attainment to a given age and surviving a given period, the death of the devisee pending the contingency, works no exclusion, but simply substitutes and lets in the devisee’s representative by descent or otherwise. Medley v. Medley, 81 Va. 265 , 1886 Va. LEXIS 95 (1886).
Possibility of reverter. —
In Virginia, upon the death intestate of the creator of a fee after which there is a possibility of reverter, such possibility of reverter immediately descends by inheritance to the person or persons designated by the Virginia statutes of descent as those to whom his real estate of inheritance shall descend, who may convey the same by deed or devise it by will, or transmit it by inheritance to his or their heirs in accordance with the Virginia statute of descents. Copenhaver v. Pendleton, 155 Va. 463 , 155 S.E. 802 , 1930 Va. LEXIS 178 (1930).
A possibility of reverter at common law passed by descent cast in accordance with the same rules of law that were applicable to technical estates of inheritance, i.e., were inheritable, and are inheritable in Virginia under and in accordance with the provisions of the Virginia statutes of descents. Copenhaver v. Pendleton, 155 Va. 463 , 155 S.E. 802 , 1930 Va. LEXIS 178 (1930).
Partial intestacy. —
Where a person dies intestate as to a portion of his estate, that particular portion passes under the statute of descent and distribution to his heirs and distributees. McCamant v. Nuckolls, 85 Va. 331 , 12 S.E. 160 , 1888 Va. LEXIS 40 (1888) (see also Headdick v. McDowell, 102 Va. 124 , 45 S.E. 804 (1903)).
Infant’s property. —
A deed conveyed property to a son and his family during his life, the property at his death to pass to his children or issue of such as may die. When the son’s daughter predeceased him, her surviving daughter who later died still an infant took as a purchaser. The infant’s interest in the property would not under former § 64.1-9 go to the surviving children of the son, but to her father, her surviving parent under this section. Smoot v. Bibb, 124 Va. 28 , 97 S.E. 355 , 1918 Va. LEXIS 74 (1918) (see Waring v. Waring, 96 Va. 641 , 32 S.E. 150 (1899)).
Rights of illegitimate children in partition suit. —
Although the intestate decedent’s children who were born out of wedlock were required to establish in a partition suit that the children were the decedent’s children to prove their title to the subject real property under § 64.1-1, the statute of descents, the children were not bound by the requirements of subdivision 4 of § 64.1-5.1 applicable to the settlement of the decedent’s estate. Jenkins v. Johnson, 276 Va. 30 , 661 S.E.2d 484, 2008 Va. LEXIS 64 (2008).
Section held inapplicable. —
This section was inapplicable to the determination of who was included in the term “next of kin” as that term was used in an agreement which deeded certain property to a university with provision for conveyance of the property under certain conditions to the persons then living who were determined to be the next of kin of the owner. Fletcher v. Washington & Lee Univ., 706 F.2d 475, 1983 U.S. App. LEXIS 28453 (4th Cir. 1983).
Subsection B of § 64.2-200 is listed subsequent to § 64.2-200 (A)(5)(a) through (e) and, by its terms, only applies if § 64.2-200(A)(5)(a) through (e) are inapplicable to either or both moieties. Subsection B of § 64.2-200 did not apply and could not have affected distribution of the decedent’s paternal side moiety because the decedent’s paternal side moiety passed to the class identified in § 64.2-200(A)(5)(b), and the decedent’s maternal side moiety passed to the class identified in § 64.2-200(A)(5)(b) or (d). Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409, 2014 Va. LEXIS 56 (2014).
CIRCUIT COURT OPINIONS
Editor’s note. —
The cases below were decided under former Title 64.1 and prior law.
Court determination of distribution. —
In a case to determine the distribution of the proceeds of the deceased, who died intestate, the court’s law clerk prepared an order that distributed the estate according to both the percentage of the maternal or paternal moiety and percentage of the overall estate that each relation would receive because the original plan of distribution contained in the proposed orders presented to the court did not adequately reflect the appropriate proportions of distributions of the estate to which each heir was entitled. Under the fifth point in § 64.1-1, the estate had to be divided into two equal moieties. Estate of Floyd, 79 Va. Cir. 187, 2009 Va. Cir. LEXIS 36 (Fairfax County Aug. 5, 2009).
Effect on property where beneficiary lacked capacity to execute a deed on his interest. —
Based on sufficient evidence presented that the grantor lacked the sufficient mental capacity to execute a deed, including testimony from a forensic clinical psychologist who performed a comprehensive psychological evaluation of the grantor, rescission of the same was ordered. But, the grantor retained his one-third interest in the property under the intestacy laws. Clark v. Small, 74 Va. Cir. 534, 2006 Va. Cir. LEXIS 184 (Nelson County July 13, 2006).
Husband could be administrator. —
Husband could be the administrator of a decedent’s estate because a certified copy of the marriage between the husband and decedent was admitted into evidence, and it created a presumption of a lawful marriage; the presumption of marriage had not been rebutted, and thus, the husband was the surviving spouse of the decedent and her sole heir because the decedent left the marital home due to medical conditions, and allegations of drunkenness and abuse were undermined by multiple witnesses. Foltz v. Shadid, 2018 Va. Cir. LEXIS 5 (Page County Jan. 13, 2018).
§ 64.2-201. Distribution of personal estate; right of Commonwealth if no other distributee.
- The surplus of the personal estate or any part thereof of any decedent, after payment of funeral expenses, charges of administration, and debts, and subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 3, not effectively disposed of by will passes by intestate succession and is distributed to the same persons, and in the same proportions, as real estate descends pursuant to § 64.2-200 .
- If there is no other distributee of a decedent’s personal estate, such personal estate shall accrue to the Commonwealth.
History. Code 1950, §§ 64-11, 64-12; 1968, c. 656, §§ 64.1-11, 64.1-12; 1978, c. 647; 1981, c. 580; 1982, c. 304; 1983, c. 320; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For survey of Virginia law on domestic relations for the year 1969-1970, see 56 Va. L. Rev. 1411 (1970).
For survey of Virginia law on taxation for the year 1972-1973, see 59 Va. L. Rev. 1584 (1973).
For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).
For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).
Research References.
Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate, et seq.; No. 15-105 Will Directing that Property Shall Pass According to Laws of Descent and Distribution.
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Executors and Administrators, § 98.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
Origin of statutes regulating succession to property. —
See Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 , 1919 Va. LEXIS 4 (1919).
Upon the death of a parent intestate his personalty passes according to the statute of distributions. Mort v. Jones, 105 Va. 668 , 51 S.E. 220 , 1905 Va. LEXIS 60 (1905).
Payment of debts. —
This section in effect declares that there shall be no distribution of the personal estate of an intestate until after the costs of administration, funeral expenses and debts of the decedent have been paid. Hall v. Stewart, 135 Va. 384 , 116 S.E. 469 , 1923 Va. LEXIS 21 (1923) (see also Scott v. Ashlin, 86 Va. 581 , 10 S.E. 751 (1890); Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 (1889)).
Under the statute law of Virginia the personal estate (as is also the real estate), of a decedent, is expressly made assets for the payment of his debts. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 , 1919 Va. LEXIS 4 (1919).
Judgment for alimony constitutes a debt within the meaning of this section. Whether such a judgment is a debt for which the debtor cannot be imprisoned, or a debt from which he may not be discharged in bankruptcy, or not, it is nevertheless an obligation which must be deducted before the estate of a decedent can be distributed under this section. Searles v. Gordon, 156 Va. 289 , 157 S.E. 759 , 1931 Va. LEXIS 192 (1931).
Alleged debt deemed a legacy in disguise, and therefore not sufficient to bar the widow of her right to one third of the personal property so given. Ruth v. Owens, 23 Va. (2 Rand.) 507, 1824 Va. LEXIS 32 (1824).
Surplus ascertained only after funeral expenses paid. —
When the estate is entirely personal, its surplus passes to distributees, but that surplus cannot be ascertained until funeral expenses have been met. Edwards v. Cuthbert, 184 Va. 502 , 36 S.E.2d 1, 1945 Va. LEXIS 169 (1945).
Right to bar spouse’s share. —
A conveyance by a husband, by which he parts absolutely with an interest in personal property, though it is not to take effect until his death, and though he retains the power to sell and reinvest or account, and also the power to reappoint among specified objects, is valid to bar the wife of her distributable share therein. Gentry v. Bailey, 47 Va. (6 Gratt.) 594, 1850 Va. LEXIS 9 (1850).
A wife has not such an interest in that portion of the personal estate of her husband, to which she may be entitled in the event of his dying intestate, or leaving a will which she may renounce, as that an absolute and irrevocable, though merely voluntary, deed thereof, executed by him to his children by a former marriage, can be considered a fraud on her rights, or be set aside at her instance. Lightfoot's Ex'rs v. Colgin, 19 Va. (5 Munf) 42, 1816 Va. LEXIS 13 (1816).
The right given by the statutes to a widow to share in the surplus of her deceased husband’s personal estate cannot be defeated by a device whereby he retains up until the time of his death full ownership and enjoyment of his personal property, and merely executes and transfers to a trustee his bare promise under seal, unsupported by an actual consideration, to pay to the trustee after his (the husband’s) death, for the benefit of designated beneficiaries, a sum of money equivalent to the corpus of his personal estate, or the major portion thereof. Norris v. Barbour, 188 Va. 723 , 51 S.E.2d 334, 1949 Va. LEXIS 243 (1949).
Where prior to death a husband who was majority stockholder in a family corporation created an irrevocable trust of his stock with the corporation as trustee, reserving in himself the right to vote the stock and providing for himself as life beneficiary of the trust and that on his death the stock would become treasury stock of the corporation, the trust so created was valid, and it was immaterial that the husband’s purpose may have been to prevent his wife from obtaining any of the stock on his death. Freed v. Judith Realty & Farm Prods. Corp., 201 Va. 791 , 113 S.E.2d 850, 1960 Va. LEXIS 161 (1960).
A man cannot disinherit his heirs or next of kin, in any other way than by giving his estate to someone else. Boisseau v. Aldridges, 32 Va. (5 Leigh) 222, 1834 Va. LEXIS 34 (1834).
Will discovered after distribution. —
It is the duty of an administrator to distribute the personal estate after the payment of debts. It is also his right. If he acts with reasonable diligence to ascertain whether a will exists, and when acting with reasonable prudence in that regard, does not think and has no reasonable ground to think that a will exists, he may safely distribute the estate, so far as persons taking under a then unknown and unrecorded will are concerned, whether it be within the year (now six months) of, or after the expiration of the year (now six months) from the qualifications, mentioned in § 64.1-177. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 , 1919 Va. LEXIS 4 (1919).
Rights of action. —
It seems, that the executor or administrator of a husband who had survived his wife, but had never taken administration on her estate, may sue the guardian of the wife for her estate committed to him. Templeman v. Fauntleroy, 24 Va. (3 Rand.) 434, 1825 Va. LEXIS 27 (1825).
Distributees of a decedent may maintain a bill in equity to assert their rights in the decedent’s estate. In such suit the personal representative of the decedent and the other distributee’s are necessary parties. Richardson's Ex'r v. Hunt, 16 Va. (2 Munf) 148, 1811 Va. LEXIS 20 (1811); Frazier v. Frazier's Ex'rs, 29 Va. (2 Leigh) 642, 1831 Va. LEXIS 25 (1831); Samuel v. Marshall, 30 Va. (3 Leigh) 567, 1832 Va. LEXIS 10 (1832); Moore's Adm'r v. George's Adm'r, 37 Va. (10 Leigh) 228, 1839 Va. LEXIS 31 (1839); Sillings v. Bumgardner, 50 Va. (9 Gratt.) 273, 1852 Va. LEXIS 29 (1852); Robertson v. Gillenwaters, 85 Va. 116 , 7 S.E. 371 , 1888 Va. LEXIS 17 (1888).
Since the statute of distributions the executor is not, in any case, entitled to the residuum of his testator’s personal estate not actually bequeathed away by the will. Shelton v. Shelton, 1 Va. (1 Wash.) 53, 1 Wash. 53, 1791 Va. LEXIS 25 (1791); Hendren v. Colgin, 18 Va. (4 Munf) 231, 1814 Va. LEXIS 32 (1814); Paup's Adm'r v. Mingo, 31 Va. (4 Leigh) 163, 1833 Va. LEXIS 7 (1833).
Section defines statutory share of renouncing widow. —
The statutory share of a widow who renounces the provisions made for her in her husband’s will is defined in this section and § 64.1-16. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
Renouncing widow is entitled to one third of the income earned on all the assets of the estate during the period of administration which is not used to pay funeral expenses, costs of administration and debts. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
A surviving spouse who has elected to take against the will of the deceased spouse is entitled to her statutory share of the income earned on all the personal assets of decedent’s estate during the period of administration. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
This section must be read along with § 64.1-161. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
Surviving spouse allowed federal estate tax marital deduction. —
See Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
Thus, charges of administration and debts do not include federal estate taxes. —
It is evident that the phrase “charges of administration and debts” found in this section was not intended to include the payment of the federal estate taxes before determining a surviving spouse’s statutory share. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
Hay. —
Sixteen hundred bales of hay left on the decedent’s land at the time of her death were assets of the intestate estate. The hay was tangible personal property, and because it was unnamed in the will, it passed under the laws of descent and distribution to the decedent’s two sons and four daughters. Teed v. Powell, 236 Va. 36 , 372 S.E.2d 131, 5 Va. Law Rep. 474, 1988 Va. LEXIS 113 (1988).
§ 64.2-202. When persons take per capita and when per stirpes; collaterals of the half blood.
- A decedent’s estate, or each half portion of such estate when division is required by subdivision A 5 of § 64.2-200 , shall, except when otherwise provided in subdivision A 1 of § 64.2-200 , be divided into as many equal shares as there are (i) heirs and distributees who are in the closest degree of kinship to the decedent and (ii) deceased persons, if any, in the same degree of kinship to the decedent who, if living, would have been heirs and distributees and who left descendants surviving at the time of the decedent’s death. One share of the estate or half portion thereof shall descend and pass to each such heir and distributee and one share shall descend and pass per stirpes to such descendants.
- Notwithstanding the provisions of subsection A, collaterals of the half blood shall inherit only half as much as those of the whole blood.
History. Code 1950, §§ 64-2, 64-3; 1968, c. 656, §§ 64.1-2, 64.1-3; 1986, c. 305; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).
For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).
CASE NOTES
Editor’s note.
Some of the cases annotated below were decided under former Title 64.1 and prior law.
Effect of former provisions. —
While the common law wholly excluded collaterals of the half blood from the inheritance, this section calls them along with those of the whole blood but gives them half portions only. Davis v. Rowe, 27 Va. (6 Rand.) 355, 1828 Va. LEXIS 23 (1828); Moore v. Conner, 20 S.E. 936 , 1890 Va. LEXIS 119 (Va. 1890).
Meaning of per capita. —
Whenever persons are entitled to participation per capita they take by persons and share equally in the estate. Davis v. Rowe, 27 Va. (6 Rand.) 355, 1828 Va. LEXIS 23 (1828); Ball v. Ball, 68 Va. (27 Gratt.) 325, 1876 Va. LEXIS 27 (1876); Dickinson v. Hoomes, 42 Va. (1 Gratt.) 302, 1844 Va. LEXIS 38 (1844); Moore v. Conner, 20 S.E. 936 , 1890 Va. LEXIS 119 (Va. 1890); Vashon v. Vashon, 98 Va. 170 , 35 S.E. 457 , 1900 Va. LEXIS 22 (1900).
Meaning of per stirpes. —
Whenever persons entitled to participation take per stirpes, or by stocks, they take the share which their deceased ancestor if living would have taken. Taliaferro v. Burwell, 8 Va. (4 Call) 321, 1803 Va. LEXIS 30 (1803); Davis v. Rowe, 27 Va. (6 Rand.) 355, 1828 Va. LEXIS 23 (1828); Dickinson v. Hoomes, 42 Va. (1 Gratt.) 302, 1844 Va. LEXIS 38 (1844); Ball v. Ball, 68 Va. (27 Gratt.) 325, 1876 Va. LEXIS 27 (1876); Moore v. Conner, 20 S.E. 936 , 1890 Va. LEXIS 119 (Va. 1890); Vashon v. Vashon, 98 Va. 170 , 35 S.E. 457 , 1900 Va. LEXIS 22 (1900).
This section does not supersede the fifth paragraph of § 64.1-1 but supplements it. Whenever, in tracing descent, designated conditions prevail, an estate must be divided into moieties, and to each of these moieties then attaches the provisions of this section. These conditions attach to each moiety as a separate entity but not to the estate theretofore divided as a single unit, although this may sometimes result in an inequality of inheritance by those who are in fact of the same degree of kinship. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316, 1941 Va. LEXIS 146 (1941).
Nothing in this section favors the construction that it deals with the subject of partition of the inheritance into moieties, which partition is fixed by the provisions of § 64.1-1. This section refers to and deals with the shares in the subject inherited of the various persons succeeding thereto, with relation to one another, whether the subject inherited be the whole or a moiety of the estate. Williams v. Knowles, 178 Va. 84 , 16 S.E.2d 316, 1941 Va. LEXIS 146 (1941).
Effect of deaths within class. —
When the class in the course of inheritance which is entitled to the intestate’s estate has been determined, no number of deaths in it, short of its total extinction, will affect the interest of any survivor of that class. Moore v. Conner, 20 S.E. 936 , 1890 Va. LEXIS 119 (Va. 1890).
Determination of distribution. —
Half-uncle took one-half of the decedent’s estate because the half-uncle, who was the only member of the class to which the decedent’s paternal side moiety passed under § 64.2-200 , took the entirety of the decedent’s paternal side moiety, and the paternal side moiety was one-half of the decedent’s entire estate. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409, 2014 Va. LEXIS 56 (2014).
Section held inapplicable. —
Statute did not affect distribution of the decedent’s paternal side moiety because the decedent’s paternal side moiety passed to a class comprised of only one heir; even though the half-uncle was a half-blood collateral heir, no whole-blood collateral heir existed as part of that class to which the decedent’s paternal side moiety passed; and, without such a whole-blood collateral, no whole-blood inheritance existed to provide a statutory basis for applying the statute to reduce the decedent’s inheritance. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409, 2014 Va. LEXIS 56 (2014).
CIRCUIT COURT OPINIONS
The county may consider extrinsic evidence of intent. Estate of Martin, 68 Va. Cir. 58, 2005 Va. Cir. LEXIS 23 (Roanoke Apr. 5, 2005) (decided under prior law).
§ 64.2-203. Inheritance rights of certain individuals.
- Except as otherwise provided by law, no person is barred from inheriting because such person or a person through whom he claims his inheritance is or has been an alien.
- A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle him to the larger share.
History. Code 1950, § 64-4; 1968, c. 656, § 64.1-4; 1978, c. 647, § 64.1-6.1; 2012, c. 614.
CASE NOTES
Former similar provisions removed the bar of alienage in making title by descent through collateral as well as lineal kindred. Jacksons v. Sanders, 29 Va. (2 Leigh) 109, 1830 Va. LEXIS 14 (1830); Garland v. Harrison, 35 Va. (8 Leigh) 368, 1837 Va. LEXIS 26 (1837); Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 , 1888 Va. LEXIS 52 (1888).
Section held inapplicable. —
Statute was not implicated and could not have affected distribution of the decedent’s paternal side moiety because the statute was implicated when an individual was related to a decedent in more than one way, and the half-uncle was related to the decedent by only one line of relationship. Sheppard v. Junes, 287 Va. 397 , 756 S.E.2d 409, 2014 Va. LEXIS 56 (2014).
§ 64.2-204. Afterborn heirs.
Relatives of the decedent conceived before his death but born thereafter, and children resulting from assisted conception born after the decedent’s death who are determined to be relatives of the decedent as provided in Chapter 9 (§ 20-156 et seq.) of Title 20, shall inherit as if they had been born during the lifetime of the decedent.
History. 1978, c. 647, § 64.1-8.1; 1994, c. 919; 2012, c. 614.
Law Review.
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For article, “Dead Men Reproducing: Responding to the Existence of Afterdeath Children,” see 16 Geo. Mason L. Rev. 403 (2009).
§ 64.2-205. Right of entry or action for land not affected by descent cast.
The right to make entry on or bring an action to recover land is not tolled or defeated by descent cast.
History. Code 1950, § 64-10; 1968, c. 656, § 64.1-10; 2012, c. 614.
§ 64.2-206. Advancements brought into hotchpot.
When the descendant of a decedent receives any property as an advancement from the decedent during the decedent’s lifetime or under the decedent’s will, and the descendant, or any descendant of his, is also to receive a distribution of any portion of the decedent’s intestate estate, real or personal, the advancement shall be brought into hotchpot with the intestate estate and the descendant is entitled to his proper portion of the entire intestate estate, including such advancement.
History. Code 1950, § 64-17; 1968, c. 656, § 64.1-17; 2012, c. 614.
Law Review.
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
Research References.
Virginia Forms (Matthew Bender). No. 15-247 Advancements.
CASE NOTES
Analysis
- I. General Consideration.
- II. What Constitutes An Advancement.
- III. Intestacy.
- IV. To What Property Applicable.
- V. Accounting.
I.General Consideration.
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
The intent of this section is to bring about, as nearly as may be, an equal division of the estate of a decedent among his children or other descendants, except so far as he may have himself distributed his estate unequally. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920); Rowe v. Rowe, 144 Va. 816 , 130 S.E. 771 , 1925 Va. LEXIS 235 (1925).
Essential elements. —
This section is operative if the decedent dies intestate as to part of his property and one or more of his descendants, who have received gifts by way of advancement, also claim the right to participate in the distribution of the property which has not been disposed of, either in the lifetime of the decedent or by his will. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920) (see also Puryear v. Cabell, 65 Va. (24 Gratt.) 260 (1874); Biedler v. Biedler, 87 Va. 300 , 12 S.E. 753 (1891)).
The Virginia doctrine of hotchpot, found in this section, prevails notwithstanding an agreement or covenant may have been entered into by a descendant with his ancestor at the time of the advancement, that he, by the acceptance of the advancement, relinquishes all interest in or claim to any portion of the estate then owned or which might be thereafter acquired by the ancestor and as to which he may die intestate. Ratliff v. Meade, 184 Va. 328 , 35 S.E.2d 114, 1945 Va. LEXIS 153 (1945).
II.What Constitutes An Advancement.
A.In General.
Definition. —
In its strictest technical sense an advancement is a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor’s estate that the donee would be entitled to on the death of the donor intestate. Hill v. Stark, 122 Va. 280 , 94 S.E. 792 , 1918 Va. LEXIS 95 (1918) (see also Chinn v. Murray, 45 Va. (4 Gratt.) 348 (1848); Nicholas v. Nicholas, 100 Va. 660 , 42 S.E. 669 (1902)).
Two elements are essential to constitute an advancement, a gift by the parent to the child and the intention by the donor that the gift shall be an advancement. But the latter may be inferred from the former. Nevertheless, a gift, in contradistinction to a transfer for valuable consideration, is indispensable. Hill v. Stark, 122 Va. 280 , 94 S.E. 792 , 1918 Va. LEXIS 95 (1918).
Illustrative cases. —
See Gregory v. Winston's Adm'r, 64 Va. (23 Gratt.) 102, 1873 Va. LEXIS 26 (1873); Watkins v. Young, 72 Va. (31 Gratt.) 84, 1878 Va. LEXIS 29 (1878); Biedler v. Biedler, 87 Va. 300 , 12 S.E. 753 , 1891 Va. LEXIS 70 (1891); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).
B.Intention.
The intention of the testator determines the question as to whether or not the gift is an advancement. And the difficulties of solving the question are generally found in the kind of evidence by which such intention is to be proved. Watkins v. Young, 72 Va. (31 Gratt.) 84, 1878 Va. LEXIS 29 (1878); Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920).
If, from all the circumstances surrounding a particular case, it can be said that a parent intended a transfer of property to a child to represent a portion of the child’s supposed share in the parent’s estate, such transfer will be treated in law as an advancement. The converse is, as a matter of course, true; hence, where it appears that the ancestor intended that a gift to his child should not be treated as an advancement, such intention will be respected and enforced. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920).
The statements of the grantor at the time, or subsequently, are competent evidence to show what was his intention. Watkins v. Young, 72 Va. (31 Gratt.) 84, 1878 Va. LEXIS 29 (1878); McDearman v. Hodnett, 83 Va. 281 , 2 S.E. 643 , 1887 Va. LEXIS 64 (1887).
C.Presumption.
The presumption that a gift of an ancestor to a descendant is a gift by way of advancement is one of law and is based upon the supposed intention or desire of the ancestor that any inequalities in the division of his whole estate among his heirs at law and distributees, according to the statute of descents and distributions, occasioned by gifts made “by way of advancement,” shall be corrected as far as practicable in the subsequent division of that portion of the donor’s estate of which he dies intestate. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).
A gift from a parent to a child, supposing the gift to be adapted to advance the child in life, would seem to create a prima facie presumption that the gift is intended as an advancement. This presumption must be rebutted by affirmative proof that the gift was not intended to be a gift by way of advancement. Watkins v. Young, 72 Va. (31 Gratt.) 84, 1878 Va. LEXIS 29 (1878); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920) (see also Rowe v. Rowe, 144 Va. 816 , 130 S.E. 771 (1925)).
And so, such a gift to a son-in-law is prima facie an advancement to the daughter. McDearman v. Hodnett, 83 Va. 281 , 2 S.E. 643 , 1887 Va. LEXIS 64 (1887).
D.Completed Transfer.
There is embraced in every definition of advancement the idea that the parent has irrevocably parted from his title in the subject advanced. Williams v. Stonestreet, 24 Va. (3 Rand.) 559, 1825 Va. LEXIS 48 (1825); Christian v. Coleman's Adm'r, 30 Va. (3 Leigh) 30, 1831 Va. LEXIS 32 (1831); Kean v. Welch, 42 Va. (1 Gratt.) 403, 1845 Va. LEXIS 8 (1845); Darne v. Lloyd, 82 Va. 859 , 5 S.E. 87 , 1887 Va. LEXIS 155 (1887).
E.Change of Gift to Advancement.
A donor may change a gift or debt to an advancement. Darne v. Lloyd, 82 Va. 859 , 5 S.E. 87 , 1887 Va. LEXIS 155 (1887).
III.Intestacy.
Partial intestacy only necessary. —
Under the Virginia statute the doctrine of hotchpot has been greatly enlarged. At the common law, it only applied when the decedent died wholly intestate, while under this section it is only necessary that there be a partial intestacy. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920).
The statute does not assume to interfere with the freedom of the ancestor to prefer one or more of his descendants in the distribution of his estate, but applies only where, having distributed a part of his estate to them, he has left part of it undisposed of, to be distributed under the statute of descents and distributions. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920).
Advancements, properly speaking, are gifts by anticipation from a parent to a child. Total intestacy was formerly necessary, but partial intestacy is now sufficient. Garrett v. Andis, 159 Va. 150 , 165 S.E. 657 , 1932 Va. LEXIS 180 (1932).
IV.To What Property Applicable.
Neither rents nor profits of land, given as an advancement, ought to be brought into hotchpot. But where a father shall permit a child to rent out his land and to receive the rents thereof for his or her use, such rents shall be brought into hotchpot as an advancement of personal estate. Williams v. Stonestreet, 24 Va. (3 Rand.) 559, 1825 Va. LEXIS 48 (1825).
Children who held land as tenants at will of mother, the life tenant, were not bound to account for rents and profits, as an advancement, in the settlement of the mother’s estate. Christian v. Coleman's Adm'r, 30 Va. (3 Leigh) 30, 1831 Va. LEXIS 32 (1831).
Interest or increase not affected. —
Where a child receives an advancement he need not bring into hotchpot the interest or increase. For as he must sustain the loss by accounting for the value of the property when given, and by caring for the property, so he is entitled to the increase. Chinn v. Murray, 45 Va. (4 Gratt.) 348, 1848 Va. LEXIS 10 (1848).
Construed with § 55-2. —
In considering what advancements are to be brought into hotchpot under the provisions of this section regard must also be had to § 55-2 forbidding parol gifts of land. Nicholas v. Nicholas, 100 Va. 660 , 42 S.E. 669 , 1902 Va. LEXIS 72 (1902).
V.Accounting.
The descendant who has received an advancement is not required to submit to a redivision of the property by giving up what he has already received, but is only subjected to the alternative of so surrendering what he has received, or of being excluded from any participation in the residue of the decedent’s estate which has not been disposed of. Payne v. Payne, 128 Va. 33 , 104 S.E. 712 , 1920 Va. LEXIS 91 (1920); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).
When advancement real estate. —
The election by a child not to bring an advancement of real property into hotchpot does not debar him from participating in the division of his father’s personal estate where such advancement does not exceed his share of the real estate. McCoy v. McCoy, 105 Va. 829 , 54 S.E. 995 , 1906 Va. LEXIS 91 (1906).
How value of advancement computed. —
The general rule is that advancements are to be accounted for as of the value they bore when received, neither rents, interest nor profits being charged against the heir or distributee. Ratliff v. Meade, 184 Va. 328 , 35 S.E.2d 114, 1945 Va. LEXIS 153 (1945) (see also Chinn v. Murray, 45 Va. (4 Gratt.) 348 (1848)).
A child having received advancements, and refusing to share in the first division, but claiming to share in the division of the dower, is to be charged with interest on his advancements or their value, from the death of the intestate to the date of the division. And if the principal and interest of his advancements exceeds the amount received by the other children, he is then to be charged with interest on such excess from that time to the period of the second division. But having elected not to come in on the first division, if his advancements with interest thereon were not equal to the shares of the other children on that division, he is not entitled to have the deficiency made up on the second division. Knight v. Oliver, 53 Va. (12 Gratt.) 33, 1855 Va. LEXIS 4 (1855).
Widow not benefited. —
Advancements to children are not brought into hotchpot for the benefit of the widow. She is only entitled to share in the estate of the intestate of which he died possessed. Knight v. Oliver, 53 Va. (12 Gratt.) 33, 1855 Va. LEXIS 4 (1855).
Purchaser from distributee. —
Under this section where the advancement to a descendant is equal to or exceeds his share in the estate, it bars his right to further participation. Although the section does not refer to a purchaser from the descendant, yet such purchaser is charged with knowledge of the public statutes of the State, and only buys and can only take the interest of his grantor in the estate. The doctrine of bona fide purchaser has no application. The purchaser only buys the heir’s interest, and when that interest is ascertained he is entitled to that and to nothing more. Corbitt v. Wright, 120 Va. 471 , 91 S.E. 612 , 1917 Va. LEXIS 132 (1917).
Illustrative cases. —
See Knight v. Oliver, 53 Va. (12 Gratt.) 33, 1855 Va. LEXIS 4 (1855); Persinger v. Simmons, 66 Va. (25 Gratt.) 238, 1874 Va. LEXIS 52 (1874); Lewis v. Henry's Ex'rs, 69 Va. (28 Gratt.) 192, 1877 Va. LEXIS 64 (1877).
CIRCUIT COURT OPINIONS
Hotchpot advancements divided. —
Where decedent’s son received $37,056.21 more in hotchpot advancements than decedent’s daughter, she was entitled to one half this difference to ensure that both parties received an equal share of the hotchpot. The decedent had expressed her intent to treat her children “as equally as possible.” Feld v. Priebe, 2004 Va. Cir. LEXIS 303 (Richmond Dec. 22, 2004).
Chapter 3. Rights of Married Persons.
Article 1. Elective Share of Surviving Spouse of Decedent Dying before January 1, 2017.
§ 64.2-300. Applicability; definitions.
- The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying before January 1, 2017.
- As used in this article, the terms “estate” and “property” shall include insurance policies, retirement benefits exclusive of federal social security benefits, annuities, pension plans, deferred compensation arrangements, and employee benefit plans to the extent owned by, vested in, or subject to the control of the decedent on the date of his death or the date of an irrevocable transfer by him during his lifetime. All such insurance policies and other benefits are included in the terms “estate” and “property” notwithstanding the presence of language contained in any statute otherwise providing that neither they nor their proceeds shall be liable to attachment, garnishment, levy, execution, or other legal process or be seized, taken, appropriated, or applied by any legal or equitable process or operation of law or any other such similar language.
History. 1990, c. 831, §§ 64.1-16.1, 64.1-16.2; 1992, cc. 617, 647; 1998, c. 234; 1999, c. 38; 2007, c. 308; 2012, c. 614; 2016, cc. 187, 269.
The 2016 amendments.
The 2016 amendments by cc. 187 and 269 are identical, and added subsection A and inserted the subsection B designation.
Law Review.
For article, “Virginia’s Augmented Estate System: An Overview,” see 24 U. Rich. L. Rev. 513 (1990).
For 1992 survey of wills, trusts, and estates law in Virginia, see 26 U. Rich. L. Rev. 873 (1992).
For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).
For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).
For 2006 survey article, “Wills, Trusts, and Estates,” see 41 U. Rich. L. Rev. 321 (2006).
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.02 In Virginia — Comparison of Elective Share Statutes, et seq. Cox.
Virginia Forms (Matthew Bender). No. 15-447 Claim for Elective Share of Augmented Estate.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
Rights subordinate to payment of estate debts. —
This section plainly expresses the intent that rights be subordinate to payment of estate debts. The debtor’s interest, regardless of when it vests, is in the value of the augmented estate. Murray v. Mares, 147 Bankr. 688, 1992 Bankr. LEXIS 1839 (Bankr. E.D. Va. 1992).
Separate interest. —
Trial court did not err in finding that the late wife’s separate property, as identified in the premarital agreement she entered into with the husband, was not to be included in his elective share upon her death, as the plain language of the premarital agreement compelled that result; the husband’s claim that the property had to be maintained or repaired in order to keep it separate had to be rejected, as the language of this section referred to keeping a legal interest in the property separate, which the late wife did. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397, 2005 Va. LEXIS 97 (2005).
Burden of proof. —
Trial court did not err by placing the burden of proving that investment accounts and land which a spouse owned when she died should be excluded from her augmented estate, pursuant to § 64.1-16.1, or by finding that the deceased spouse’s estate did not meet its burden of proof. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584, 2003 Va. LEXIS 102 (2003).
A petition to establish the amount of an elective share may be filed by the surviving spouse, the decedent’s personal representative, or any party in interest. Regardless of who files the petition invoking judicial intervention, the party seeking inclusion of property under subsection A of § 64.1-16.1 has the burden of proof under that subsection and the party seeking exclusion of property under subsection B of § 64.1-16.1 carries the burden of establishing such exclusion. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584, 2003 Va. LEXIS 102 (2003).
CIRCUIT COURT OPINIONS
Editor’s note. —
The cases below were decided under former Title 64.1 and prior law.
No waiver of right to claim elective share. —
Decedent’s husband was awarded his elective share of the decedent’s estate, plus his spousal allowances, because the absence of a written premarital or marital agreement, in which the husband waived his right to claim his elective share of the decedent’s augmented estate, was fatal to the estate’s argument that the husband’s claims for his elective share and for the family allowance be denied due to concerns of fairness to the decedent’s son, daughter, and grandson. Higham v. Williams, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).
Group life insurance policy included within estate property. —
The terms “estate” and “property” include, within their given definitions, group life insurance policies. Felix-Aranibar v. Felix, 59 Va. Cir. 357, 2002 Va. Cir. LEXIS 231 (Arlington County Aug. 12, 2002).
Pre-marriage transfers. —
Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent’s augmented estate, the surviving spouse was not entitled to an elective share distribution § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County Apr. 11, 2006).
Transferred property included in augmented estate because spouse’s consent to transfer was not in writing. —
Where a decedent had transferred real estate to her daughter, under § 64.1-16.1, the value of this property had to be included in the augmented estate because the decedent reserved a life estate in the property and it was gratuitously transferred less than five years before her death. That her husband did not object to the transfer was immaterial; as he did not consent to the transfer in writing, the property could not be excluded under § 64.1-16.1.Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County May 25, 2006).
Widow raised fact issue as to whether decedent’s real property was maintained as his separate property. —
Summary judgment was denied on the issue of whether real property which was willed to the decedent and was titled in the decedent’s name only was part of the decedent’s augmented estate; the widow was entitled to the opportunity to prove that at least part of the value of the real estate was attributable to the personal efforts of either party during the marriage or to contributions of marital property as described in subdivision A 1 of § 20-107.3 .Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County Oct. 24, 2002).
Titling of real estate is not conclusive as to whether the property is maintained as separate property. —
Titling of real estate in an individual name is only one consideration in determining whether the property has been maintained as separate property under clause (ii) of subsection B of § 64.1-16.1.Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County Oct. 24, 2002).
Decedent’s separate property transmuted into marital property by spouse’s contributions. —
Value of a house a decedent had gratuitously transferred was part of the augmented estate. Though it was her separate property when she married, as her husband’s wages were used to make improvements and repairs to the house, it was transmuted into marital property, thereby rendering the separate property limitation of § 64.1-16.1 inapplicable. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County May 25, 2006).
Fair market value of fractional interests. —
Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse’s elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County Nov. 4, 2005).
Decedent’s husband was awarded his elective share of the decedent’s estate, plus his spousal allowances, because the value of bank accounts in the decedent’s name, which were payable on her death to her son or her grandson, were included in the decedent’s augmented estate; the full value of accounts the decedent owned as joint tenants with rights of survivorship with her son, daughter, and grandson were also included in the augmented estate because the son, daughter and grandson had no practical access to the accounts when they remained the decedent’s assets solely controlled by her. Higham v. Williams, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).
Property included in augmented estate. —
Decedent’s husband was awarded his elective share of the decedent’s estate, plus his spousal allowances, because the entire value of properties the decedent owned with her son and daughter as joint tenants were included in her augmented estate; the estate failed to meet its burden of proving the value of the son’s interest in the property he owned with the decedent, and the daughter paid no part of the consideration for the acquisition of the properties she owned with the decedent. Higham v. Williams, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).
Designation of beneficiary. —
Where a state employee had designated an ex-wife as beneficiary of any accumulated retirement contributions and because the parties’ divorce was prior to July 1, 1993, §§ 20-111.1 , 64.1-16.2 C, and 64.1-59 did not apply; as a result, the designation in favor of the ex-wife was not revoked when the parties were divorced. Va. Ret. Sys. v. Bonaparte, 61 Va. Cir. 304, 2003 Va. Cir. LEXIS 129 (Richmond Mar. 7, 2003).
Discount of fractional shares conveyed. —
Where those liable for an elective share did not select the option to pay cash, but conveyed fractional interests in real estate to an heir, the value conveyed of the fractional interests meant ascertaining their fair market value on an individual basis without reference to what impact the transfer of such interest had on those who held title to the property as tenants in common. In re Estate of Smith, 67 Va. Cir. 33, 2005 Va. Cir. LEXIS 8 (Madison County Feb. 1, 2005).
Pre-marriage transfers. —
Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent’s augmented estate, the surviving spouse was not entitled to an elective share distribution under § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County Apr. 11, 2006).
Assets in decedent’s checking account received by spouse by right of survivorship. —
Pursuant to § 64.1-16.2, a decedent’s assets in checking accounts that her husband received by right of survivorship were applied first to satisfy his elective share. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County May 25, 2006).
OPINIONS OF THE ATTORNEY GENERAL
Virginia Retirement System benefits
are not part of the probate estate and are not subject to probate tax, even if the benefits are included in the calculation of an augmented estate under this section. See opinion of Attorney General to The Honorable Hayden H. Horney, Clerk, Wythe County Circuit Court, 04-25 (5/19/04).
§ 64.2-301. Dower or curtesy abolished.
The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.
The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.
History. 1990, c. 831, § 64.1-19.2; 2012, c. 614.
Law Review.
For article, “Virginia’s Augmented Estate System: An Overview,” see 24 U. Rich. L. Rev. 513 (1990).
For survey of Virginia property law for the year 1989-1990, see 24 U. Rich. L. Rev. 725 (1990).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.01 In Virginia — Overview. Cox
CASE NOTES
Analysis
- I. Surviving Spouse.
- II. Synonymous Terms.
- III. Desertion.
- IV. Surplus After Lien.
- V. Jointure.
- VI. Entitlement Before Assignment.
- VII. Assignment and Recovery.
I.Surviving Spouse.
Editor’s note.
The annotations below were decided under former Title 64.1 and prior provisions. Some of the cases were decided prior to the abolition of dower and curtesy.
Section defines the right of a surviving spouse in the decedent’s real property as a “dower or curtesy interest” and fixes the scope of that interest. Carter v. King, 233 Va. 60 , 353 S.E.2d 738, 3 Va. Law Rep. 1905, 1987 Va. LEXIS 170 (1987).
The 1977 amendment did not convert right to dower or curtesy into right of inheritance. —
The General Assembly did not intend the 1977 amendment to this section to convert the right to dower or curtesy, a marital right, into a right of inheritance. Carter v. King, 233 Va. 60 , 353 S.E.2d 738, 3 Va. Law Rep. 1905, 1987 Va. LEXIS 170 (1987).
Although the 1977 amendment to former § 64.1-19 redefined the dimensions of the dower or curtesy interest, it did not change its character. Carter v. King, 233 Va. 60 , 353 S.E.2d 738, 3 Va. Law Rep. 1905, 1987 Va. LEXIS 170 (1987).
Former § 64.1-19 did not apply where the widow accepts jointure provided for her by a will or a deed. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312, 1958 Va. LEXIS 126 (1958) (commented on in 44 Va. L. Rev. 1393 (1958)).
Necessary character of spouse’s estate of inheritance. —
Where a woman marries a man lawfully seized at any time during the coverture of an estate of inheritance, while it is not necessary, in order that the wife may take dower, that there should be any issue of the marriage, it is essential that the husband’s inheritance be of such character that it may descend upon the issue of the marriage, should there be any, as heirs of the husband. Snidow v. Snidow, 192 Va. 60 , 63 S.E.2d 620, 1951 Va. LEXIS 154 (1951).
Seisin of spouse must be beneficial. —
A legal title in the husband is nothing as regards the wife’s right of dower, unless accompanied by the beneficial ownership; and the beneficial ownership is everything, though separated from the legal title. Wilson v. Davisson, 41 Va. (2 Rob.) 384, 1843 Va. LEXIS 40 (1843); James v. Upton, 96 Va. 296 , 31 S.E. 255 , 1898 Va. LEXIS 91 (1898).
And either actual or constructive. —
Without seisin in the husband during the coverture, either actual or constructive, that is to say, without seisin in law or seisin in fact in the husband, there can be no right to dower in the wife. Grant v. Sutton, 22 S.E. 490 (Va. 1895).
Ascertainment of estate in which deceased spouse had seisin does not necessarily determine dower interest of surviving spouse. A prior encumbrance will reduce the amount of dower. Devers v. Chateau Corp., 792 F.2d 1278, 1986 U.S. App. LEXIS 26249 (4th Cir. 1986).
Dower or curtesy where spouse had defeasible fee. —
Where a wife was seized of a defeasible fee in real estate devised to her, it was an estate of inheritance and her husband was entitled to curtesy, his right not having been lawfully barred or relinquished. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369, 1959 Va. LEXIS 175 (1959).
Where a wife conveyed to her husband real property in which she had a defeasible fee, her husband’s curtesy interest in that parcel of real estate was not extinguished by merger into the defeasible fee since it was not until her death, when the defeasible fee was obliterated, that he acquired an estate by the curtesy. The two estates never met or united in him at one and the same time. Newsome v. Scott, 200 Va. 833 , 108 S.E.2d 369, 1959 Va. LEXIS 175 (1959).
Where a devise of land was defeasible by the death of the devisee without lawful issue of his body, and the devisee so died, his widow was held entitled to dower in the land. Snidow v. Snidow, 192 Va. 60 , 63 S.E.2d 620, 1951 Va. LEXIS 154 (1951).
Right of entry in favor of widow. —
Dower is an interest in land for which a right of entry exists in favor of a widow under Virginia law. Devers v. Chateau Corp., 748 F.2d 902, 1984 U.S. App. LEXIS 16567 (4th Cir. 1984).
Wife entitled to dower in rent and reversion when husband conveyed property without her knowledge or consent. —
Where husband, at the time he married wife, owned a piece of real estate subject to a 99-year lease for a rent of $5,000 per month and a reversionary interest in the land and the apartment building on it, and he subsequently conveyed the property to the lessees and cancelled the lease without his wife’s knowledge or consent, wife was entitled to dower in one-third of the rents and the reversion. Devers v. Chateau Corp., 792 F.2d 1278, 1986 U.S. App. LEXIS 26249 (4th Cir. 1986).
Dower prior to assignment. —
Until the widow’s dower has been assigned to her, her dower right is merely a right to sue for and compel the setting aside to her of her dower interest, and is not an estate in itself. First Nat'l Exch. Bank v. United States, 335 F.2d 91, 1964 U.S. App. LEXIS 4625 (4th Cir. 1964).
Specific performance of a written contract to sell real estate owned in fee by a wife whose husband refuses to release his inchoate curtesy interest should not be decreed unless the purchaser is willing to accept a deed without the relinquishment of such curtesy interest, and asks no abatement in the purchase price set forth in the contract. God v. Hurt, 218 Va. 909 , 241 S.E.2d 800, 1978 Va. LEXIS 245 (1978).
The heirs could not compel a widow to pay the debts of the estate in order to preserve for herself the life interest allowed as dower under the former law, and, incidentally, to preserve for the heirs the reversionary interest in the property which might be subjected by the creditors. The election was one for the widow and not for the heirs. She could elect to pay the debts and enjoy the income from the property, but she was not bound to do so to protect her interest, nor could the heirs compel her to do so to protect their interest. Morrison v. Morrison, 177 Va. 417 , 14 S.E.2d 322, 1941 Va. LEXIS 228 (1941).
Widow can exercise her dower rights either at law or in equity. The fact that an equitable remedy exists in addition to a legal remedy does not mean that the statute of limitations for entry to land does not apply. Devers v. Chateau Corp., 748 F.2d 902, 1984 U.S. App. LEXIS 16567 (4th Cir. 1984).
Statute of limitations. —
The 15-year statute of limitations (§ 8.01-236 ) applies to an action to insure the dower rights of a widow. Devers v. Chateau Corp., 748 F.2d 902, 1984 U.S. App. LEXIS 16567 (4th Cir. 1984).
II.Synonymous Terms.
Husband can acquire sole and separate equitable estate. —
Former § 64.1-19.1 was ambiguous and incomplete as to the treatment to be given words that may be associated with “dower” and “curtesy” in statutes. But when this section and former § 64.1-21 were read together, it was manifest and a husband could acquire a sole and separate equitable estate in realty in Virginia. Jacobs v. Meade, 227 Va. 284 , 315 S.E.2d 383, 1984 Va. LEXIS 244 (1984).
No right to dower in equitable separate estate where excluded by instrument creating it. —
Former § 64.1-21 when construed with former § 64.1-19.1 provided that a surviving wife should not be entitled to dower in the equitable separate estate of the deceased husband if such right thereto had been expressly excluded by the instrument creating the same, or if such instrument described the estate as his sole and separate equitable estate. Jacobs v. Meade, 227 Va. 284 , 315 S.E.2d 383, 1984 Va. LEXIS 244 (1984).
III.Desertion.
Justifiable desertion. —
Where the wife left the husband because of frequent and continued drunken sprees during which he was quarrelsome, disorderly and dangerous, and inflicted great cruelty upon her, she did not of her own free will desert her husband, refusing to return to him without just cause, and former § 64.1-23 was not applicable. Harman v. Harman, 139 Va. 508 , 124 S.E. 273 , 1924 Va. LEXIS 127 (1924).
The mere facts that the wife leaves the home and that her husband remains there do not make this section applicable. If the leaving of the home by the wife is caused by such conduct on the part of the husband that the husband is guilty of constructive desertion of the wife, certainly where such constructive desertion consists of actual, physical cruelty on the part of the husband, in such a degree as to cause the wife to leave, and justify her in leaving the home to protect herself therefrom, it is not a voluntary leaving. Harman v. Harman, 139 Va. 508 , 124 S.E. 273 , 1924 Va. LEXIS 127 (1924).
Former § 64.1-23 had no application where damages are sought under the death by wrongful act statutes (§§ 8.01-50 through 8.01-56 ), because the damages recoverable in such an action are no part of the estate of the decedent. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337, 1944 Va. LEXIS 135 (1944).
IV.Surplus After Lien.
Purpose. —
Prior to reenactment, was to give the wife in her husband’s lifetime an interest in the equity of redemption, contingent, however, upon her surviving her husband. It was to give the inchoate and contingent dower of the wife the power to attach to the equity of redemption, during his lifetime, so that after a sale in her husband’s lifetime, it would survive and be enforceable against his equity of redemption in the lands after his death, just as if the sale had been made after his death. Hoy v. Varner, 100 Va. 600 , 42 S.E. 690 , 1902 Va. LEXIS 65 (1902).
The object of former § 64.1-28 seemed to be to provide for a case in which the land was sold in the lifetime of the husband, when the wife had a mere contingent right of dower. Robinson v. Shacklett, 70 Va. (29 Gratt.) 99, 1877 Va. LEXIS 8 (1877).
Surviving spouse entitled to only one third of surplus. —
The widow is entitled to dower in what remains of the land after satisfying the encumbrances; and by “dower in such surplus” is meant one third of such surplus. Hoy v. Varner, 100 Va. 600 , 42 S.E. 690 , 1902 Va. LEXIS 65 (1902).
The terms of former § 64.1-28 left it in doubt whether the wife, in taking her dower “in the surplus,” was to take out of the surplus only one third of the surplus or was to take one third of the value of the whole tract subjected to the lien. But it is now settled in Virginia that the dower is to consist of one third of the surplus only, not only under the statute where the land is sold under the lien in the husband’s lifetime, but also independently of statute where the land is sold under the lien after the husband’s death. Poteet v. International Harvester Co., 153 Va. 304 , 149 S.E. 512 , 1929 Va. LEXIS 264 (1929).
And when heirs redeem surviving spouse does not take dower in the whole land. —
Former § 64.1-28 did not indicate, either by inference or otherwise, that where mortgaged lands, in which the dower is relinquished, are sold after the husband’s death, or where the equity of redemption descends to the heirs and they have redeemed the land, the widow shall take dower in the whole land. Hoy v. Varner, 100 Va. 600 , 42 S.E. 690 , 1902 Va. LEXIS 65 (1902).
Purchaser of land is not liable for application of purchase money. —
Although former § 64.1-28 provided that the widow shall be entitled to dower in the surplus, it did not make the land in the hands of a bona fide purchaser at a judicial sale thereof liable for her claim, nor was the purchaser bound to see to the application of the purchase money. Hurst v. Dulaney, 87 Va. 444 , 12 S.E. 800 , 1891 Va. LEXIS 91 (1891).
V.Jointure.
Former § 64.1-29 and § 64.1-32 must be read together. The former is qualified by the latter. The devise for the jointure of the wife shall bar her dower of the real estate unless her jointure be lawfully taken from her. Livermon v. Lloyd, 159 Va. 565 , 166 S.E. 475 , 1932 Va. LEXIS 218 (1932).
Husband may make devise to wife for her jointure. —
The legislature by enacting former § 64.1-29 expressly authorized a husband to make a devise to the wife for her jointure to be in lieu of dower, and, if a devise were so made to her, it should be construed to be in lieu of dower unless a contrary intention appear from the will or some other writing signed by the party making the provision. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
The essentials of former § 64.1-29 were that the conveyance or devise must be “intended to be in lieu of dower,” it must be “for the jointure of the wife,” and it must take effect “upon the death of her husband.” Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
One of the essential elements in practically every definition of jointure in lieu of dower is that it is an estate that must take effect in possession immediately on the death of the husband and continue during the life of the wife at least. Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201, 1945 Va. LEXIS 218 (1945).
“Every such provision” means a conveyance or devise “for the jointure of the wife.” Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
And the word “devise,” which would create jointure, implies that it must be embraced in an unrevoked will. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
Language held rule of construction and not property. —
The last portion of former § 64.1-29 “every such provision . . . was intended to be in lieu of dower unless the contrary intention plainly appear in such deed or will or in some other writing signed by the party making the provision” has been held to be a rule of construction and not a rule of property. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943); Bolling v. Bolling, 88 Va. 524 , 14 S.E. 67 , 1891 Va. LEXIS 66 (1891).
Section must be reasonably construed. —
The provision of former § 64.1-29 that a conveyance or devise for the jointure of the wife was taken to be intended in lieu of dower must be reasonably construed, and the estate given must bear some fair relation in value to that of the estate released. McDonald v. McDonald, 169 Va. 752 , 194 S.E. 709 , 1938 Va. LEXIS 245 (1938).
Former § 64.1-29 did not require a consideration, nor is a statement of the intent of the settlement required. If the husband does not intend or desire the conveyance, or settlement, to operate as a jointure he must so declare it in the instrument. Tusing v. Tusing, 169 Va. 769 , 194 S.E. 676 , 1937 Va. LEXIS 192 (1937).
The only change made by former § 64.1-29 in the common law was that the jointure may be of personal as well as real estate. Land v. Shipp, 98 Va. 284 , 36 S.E. 391 , 1900 Va. LEXIS 41 (1900); Tusing v. Tusing, 169 Va. 769 , 194 S.E. 676 , 1937 Va. LEXIS 192 (1937).
It has no application to foreign wills of personalty. —
Former § 64.1-29 has not changed the rule of the common law that wills of personalty are to be construed according to the law of the place of the testator’s domicile. Thus, where a testator, domiciled in New York, bequeathed personal property to his wife, but made no disposition of his realty in Virginia, and there is no incompatibility between her claim for dower and her claim to the provision, the testator’s intention must be construed according to the law of New York. Bolling v. Bolling, 88 Va. 524 , 14 S.E. 67 , 1891 Va. LEXIS 66 (1891).
The conveyance or devise must be to the woman as a wife, or at least to the wife in expectancy, and it must constitute jointure in lieu of dower. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
Devise when no intention of marrying existed. —
Former §§ 64.1-64.1-30 did not necessarily contemplate as jointure a devise by an unmarried man to a woman whom he later marries, when, at the time the devise was made, he had no intention of marrying, and no intention to create a jointure estate. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
Conveyance may be by other than prospective husband. —
Former § 64.1-29 did not change the rule that jointure is an estate conveyed to the prospective husband and wife, jointly and before the marriage, by another person. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
The estate intended to be in lieu of dower may be conveyed or devised to the intended wife by anyone other than the intended husband. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
A conveyance taking effect in praesenti is not jointure. —
Jointure, under former § 64.1-29, does not include an estate conveyed to the wife to take effect in praesenti. Fuller v. Virginia Trust Co., 183 Va. 704 , 33 S.E.2d 201, 1945 Va. LEXIS 218 (1945) (overruling McDonald v. McDonald, 169 Va. 752 , 194 S.E. 709 (1938) on this point).
Widow who accepts jointure not entitled to dower in property as to which husband died intestate. —
Where a testator by his will gave his wife one third of his personal estate in fee and one third of his real estate for life, and under former § 64.1-29 this provision was intended to be in lieu of dower, his widow, unless she waived jointure as provided in former § 64.1-30 would not be entitled to dower in the remaining two thirds of the real estate, although the testator’s disposition of that portion of his property had been declared void so that as to it he died intestate. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312, 1958 Va. LEXIS 126 (1958).
Section not applicable where widow is willed all of her husband’s estate. Snidow v. Snidow, 192 Va. 60 , 63 S.E.2d 620, 1951 Va. LEXIS 154 (1951).
Widow cannot have both jointure and dower. —
It is clearly provided that the widow cannot have both jointure and dower. She must choose one or the other. She may waive what the husband has given her by the will or by deed in lieu of her dower and claim dower in his real estate; but if she does, she must relinquish what the will or the deed has given her as jointure, because that is what the statute in express terms requires. She cannot have both. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312, 1958 Va. LEXIS 126 (1958).
This section was intended to provide how a widow must proceed who desires to reject the provision made for her by her husband’s will out of property other than her own, and to take such interest in his lands as the law gives her. Pence v. Life, 104 Va. 518 , 52 S.E. 257 , 1905 Va. LEXIS 128 (1905); Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 900 (1910).
And was enacted on the theory that it was the natural inclination of a surviving consort to accept and follow the wishes of the deceased consort as expressed in a will. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
In a case where this section does apply an election to accept may be express or implied. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
And in such case clear proof of an election made must be furnished, and ambiguous acts and conduct will in general not be so construed. But such election, either to affirm or renounce the will, need not be express, but may be implied by conduct, acts, omissions and mode of dealing with the property. Pence v. Life, 104 Va. 518 , 52 S.E. 257 , 1905 Va. LEXIS 128 (1905); Showalter v. Showalter, 107 Va. 713 , 60 S.E. 48 , 1908 Va. LEXIS 132 (1908); Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 900 (1910); Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
And will not be binding if made under mistake and in ignorance of the real estate of the property involved. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
Devise may be made before marriage. —
This section makes it appear that the will in which the provision for jointure is to be made may be made before the marriage. Shackelford v. Shackelford, 181 Va. 869 , 27 S.E.2d 354, 1943 Va. LEXIS 235 (1943).
A bequest and devise to a wife for the use of her children, confers no beneficial interest and cannot be construed as a jointure in bar of dower. Blunt v. Gee, 9 Va. (5 Call) 481, 1805 Va. LEXIS 17 (1805).
Where a husband disposes of property belonging to a wife in her own right, and also makes provision for her by his will, this section has no application, and the wife is put to an ordinary election. Pence v. Life, 104 Va. 518 , 52 S.E. 257 , 1905 Va. LEXIS 128 (1905); Showalter v. Showalter, 107 Va. 713 , 60 S.E. 48 , 1908 Va. LEXIS 132 (1908); Waggoner v. Waggoner, 111 Va. 325 , 68 S.E. 900 (1910).
VI.Entitlement Before Assignment.
Widow’s quarantine at common law. —
Former § 64.1-33 was a substitute for what is known at common law as the widow’s quarantine — a right to hold and occupy the capital message or mansion house for 40 days after the husband’s death, and during that time to be provided with all necessaries at the expense of the heir, and, before the termination of 40 days, to have her dower assigned her. If, however, the 40 days expired without her dower being assigned, she might be turned out of possession, and put to her action for the recovery of her dower. Simmons v. Lyles, 73 Va. (32 Gratt.) 752, 1880 Va. LEXIS 96 (1880).
Is extended by this section. —
The effect of former § 64.1-33 was merely to extend the quarantine. The object manifestly was to coerce the heir to assign dower, and until this was done, to protect the widow in the enjoyment of the homestead and the rents and profits accruing therefrom. The widow has no vested estate in the mansion house, “but a mere right to hold and occupy until dower is assigned her. It is but a permissive possession, determinable whenever the heir or person holding the fee elects to assign dower.” Simmons v. Lyles, 73 Va. (32 Gratt.) 752, 1880 Va. LEXIS 96 (1880).
Widow not a tenant of the land until dower assigned. —
While a widow has certain rights and privileges accorded her by former § 64.1-33 with reference to her husband’s real estate prior to the assignment of dower, it is the assignment of dower which creates her a tenant of the land in severalty for life. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911).
Waiver of widow’s right to occupy mansion house. —
While the widow’s right to occupy the mansion house between the date of the death of her husband and the time dower is assigned to her is an important right and of ancient origin, it is a right which may be waived and is waived by her voluntary abandonment of the property. Owen v. Lee, 185 Va. 160 , 37 S.E.2d 848, 1946 Va. LEXIS 189 (1946).
Widow may allow another to occupy mansion house for her. —
A widow might occupy the mansion house and land thereto herself, or allow another to do it for her. McReynolds v. Counts, 50 Va. (9 Gratt.) 242, 1852 Va. LEXIS 36 (1852).
Surviving spouse paying taxes on curtesy property, etc., not volunteer. —
Surviving spouse, in paying the taxes on curtesy property, making improvements and discharging the lien thereon, cannot be considered a volunteer. He was in possession as the surviving spouse, under this section, awaiting assignment of his curtesy, and he had the right to make the payments for his own protection and indemnity and to look to the property for reimbursement. Colbert v. Priester, 214 Va. 606 , 203 S.E.2d 134, 1974 Va. LEXIS 187 (1974).
Reimbursement of widow for taxes and purchase money paid. —
Where a widow remains in the mansion house, no assignment of dower being made, and pays a balance of the purchase money due for the property, and the taxes due thereon, as against judgment creditors of her late husband, she is entitled to be paid the amount of the taxes she has paid, and so much of the purchase money paid by her as was properly payable by the heirs. Simmons v. Lyles, 73 Va. (32 Gratt.) 752, 1880 Va. LEXIS 96 (1880).
VII.Assignment and Recovery.
When assignment of commissioners binding. —
An assignment of dower made by commissioners, under an order of court, at the instance of one of several coheirs, is binding on the widow, provided it be a full and just assignment; and it is binding, also, on the coheirs, provided the assignment is not excessive. Moore v. Waller, 23 Va. (2 Rand.) 418, 1824 Va. LEXIS 17 (1824).
Payment of commuted dower interest qualifies for federal estate tax marital deduction. —
Payment made to the widow for the commuted value of her dower interest qualifies for the federal estate tax marital deduction. National Bank v. United States, 218 F. Supp. 907, 1963 U.S. Dist. LEXIS 9495 (E.D. Va. 1963).
By taking dower out of terminable interest rule. —
The commutation of the dower right and its payment in cash takes it out of the terminable interest rule for purposes of the marital tax deduction. First Nat'l Exch. Bank v. United States, 217 F. Supp. 604, 1963 U.S. Dist. LEXIS 9493 (W.D. Va. 1963), aff'd, 335 F.2d 91, 1964 U.S. App. LEXIS 4625 (4th Cir. 1964).
Since payment in cash is not terminable interest. —
Where widow never had any right to have her dower right assigned to her in land since it was not susceptible of assignment in kind, and had the right commuted and paid to her in cash under this section, she thus acquired cash which was not a terminable interest for purpose of the federal estate tax marital deduction. First Nat'l Exch. Bank v. United States, 217 F. Supp. 604, 1963 U.S. Dist. LEXIS 9493 (W.D. Va. 1963), aff'd, 335 F.2d 91, 1964 U.S. App. LEXIS 4625 (4th Cir. 1964); National Bank v. United States, 218 F. Supp. 907, 1963 U.S. Dist. LEXIS 9495 (E.D. Va. 1963).
Bill for dower and other relief. —
A widow entitled to dower may, under this section, file her bill in equity to recover the same, and jurisdiction, having attached for that purpose, is not affected by the fact that her bill prays for relief to which she is not entitled. In a suit to recover dower, a defendant entitled to partition may, by crossbill, upon a proper showing, ask to have the land sold for the purpose of partition as well as assignment of dower. Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 , 1910 Va. LEXIS 63 (1910).
This section was enacted for the benefit of alienees, independent of the widow’s wishes. But to have the benefit of this section the alienee must not only elect to pay the annual interest therein provided, but must actually pay it. Such payment is the condition and the consideration upon which alienee’s right to the continued possession of her interest in the land depends. Dickenson v. Gray, 100 Va. 526 , 42 S.E. 298 , 1902 Va. LEXIS 55 (1902).
But not intended to deprive widow of dower in kind. —
But it was not the intention of the law-making power, in the enactment of this section to deprive the widow of her right to dower in kind by merely giving her a personal decree against the alienee for annual interest on its value. It is the payment of the annual interest, which interest is in a sense the purchase price of her property, and not merely a personal decree against the alienee, which bars her right to have dower in kind assigned. Dickenson v. Gray, 100 Va. 526 , 42 S.E. 298 , 1902 Va. LEXIS 55 (1902).
This section permits alienees to elect to keep the property and pay the surviving spouse interest on one-third of the value of the deceased spouse’s interest in the realty. Devers v. Chateau Corp., 792 F.2d 1278, 1986 U.S. App. LEXIS 26249 (4th Cir. 1986).
Section properly applied. —
Where there was nothing in the record that indicated an attempt to defraud wife by owners, to whom deceased husband had conveyed property without wife’s knowledge or consent, and no mention of wife in the chain of title, the relevant deeds in fact reciting that husband was divorced and not remarried, it was proper to apply this section. Devers v. Chateau Corp., 792 F.2d 1278, 1986 U.S. App. LEXIS 26249 (4th Cir. 1986).
§ 64.2-302. When and how elective share may be claimed by surviving spouse.
- A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent’s will or (ii) the decedent dies intestate.
- The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent’s augmented estate within six months from the later of (i) the time of the admission of the decedent’s will to probate or (ii) the qualification of an administrator on the decedent’s intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent’s estate, or by a writing recorded in the court or the clerk’s office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1.
- The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent’s domicile at death.
History. Code 1950, § 64-13; 1968, c. 656, § 64.1-13; 1990, c. 831; 1995, c. 211; 2012, c. 614.
Editor’s note.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “Chapter 6 (§ 55.1-600 et seq.) of Title 55.1” for “Chapter 6 (§ 55-106 et seq.) of Title 55.”
Law Review.
For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
For annual survey essay, “Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins,” 44 U. Rich. L. Rev. 149 (2009).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.01 In Virginia — Overview, et seq. Cox.
Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate, et seq.; No. 6-715 Checklist for Guardian ad litem’s Report; No. 15-447 Claim for Elective Share of Augmented Estate, et seq.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
This section and §§ 64.1-14 and 64.1-16 are confined to personal property. Blunt v. Gee, 9 Va. (5 Call) 481, 1805 Va. LEXIS 17 (1805); Ambler v. Norton, 14 Va. (4 Hen. & M.) 23, 1809 Va. LEXIS 27 (1809); Wiseley v. Findlay, 24 Va. (3 Rand.) 361, 1825 Va. LEXIS 22 (1825).
These sections were enacted on the theory that it was the natural inclination of a surviving consort to accept and follow the wishes of the deceased consort as expressed in a will. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
Widow’s right is absolute and certain. —
The widow’s right to her share of her deceased husband’s estate secured to her by the statute allowing renunciation is an absolute, paramount and certain right which her husband may not deny her. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
The one-year (now six-month) limitation in this section merely restricts the time in which the right may be availed of and does not lessen its certainty. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
Acknowledgment requirement. —
Because a widow’s original petition for contribution to enforce her right to an elective share was not acknowledged, it failed to comply with the requirements of §§ 64.1-13 and 55-106; because a later filing was not filed within the six-month time period required by § 64.1-13, the trial court properly sustained a son’s demurrer. Haley v. Haley, 272 Va. 703 , 636 S.E.2d 400, 2006 Va. LEXIS 103 (2006).
Effect of agreement in bar of dower. —
By an agreement in contemplation of marriage, the intended husband bound his estate to pay to his intended wife certain sums of money if she survived him, which were to be in bar of and in full compensation for her dower. This agreement, although a bar to her claiming dower in her husband’s real estate, does not deprive her of her distributive share of his personal estate. Findley's Ex'rs v. Findley, 52 Va. (11 Gratt.) 434, 1854 Va. LEXIS 33 (1854).
Defeating distributive share during lifetime. —
The husband had the power according to the modern common law to alienate by sale or gift in his lifetime the whole or any part of his personal estate and thereby exclude his wife from any interest therein. This power is impliedly recognized by the statutes. Gentry v. Bailey, 47 Va. (6 Gratt.) 594, 1850 Va. LEXIS 9 (1850).
While a husband cannot by will defeat his wife’s claim to her distributive share in his personal estate, he may do so by an irrevocable disposition of his property in his lifetime, although he secures a life estate to himself and his purpose is to defeat the claim of his wife as one of his distributees. An irrevocable deed of trust is not to be considered a will in disguise merely because it disposes of nearly all of grantor’s personal estate and reserves to the grantor the possession and control of the property during his life. Hall v. Hall, 109 Va. 117 , 63 S.E. 420 , 1909 Va. LEXIS 9 (1909) (see also Lightfoot’s Ex’rs v. Colgin, 19 Va. (5 Munf.) 42 (1813); Ruth v. Owens, 23 Va. (2 Rand.) 507 (1824); Gentry v. Bailey, 47 Va. (6 Gratt.) 594 (1850); Freed v. Judith Realty & Farm Prods. Corp., 201 Va. 791 , 113 S.E.2d 850 (1960)).
Two circumstances must concur to render the gift testamentary in its nature: one is, that it is not to be substantially effective till his death; and the other is, that the husband does not divest himself of the capacity to recall it, and so resume to himself or his estate the ownership granted. Ruth v. Owens, 23 Va. (2 Rand.) 507, 1824 Va. LEXIS 32 (1824).
Deed of settlement and necessity of renouncing will. —
A husband made a deed of settlement of property upon his wife, and then by will made a disposition of the property, different from that made by the deed of settlement, and far less beneficial to the wife, and died. The wife took administration with the will annexed. The widow may claim under the deed of settlement, without having renounced the provision made for her by the will according to the statute. Taylor v. Browne, 29 Va. (2 Leigh) 419, 1830 Va. LEXIS 52 (1830).
Clear proof of election must be furnished, and ambiguous acts and conduct will in general not be so construed unless in those cases where the interests of others have been affected by the acts. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
Election of widow to take under will may be express or implied from acts and conduct, such as acceptance and acquiescence. There are no steps, formal or otherwise, prescribed by this section for an election to accept the testamentary provisions. No action — mere silence — for a year is conclusive. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
But it must have been with a knowledge of her rights, and with the intention of electing. Election to take under will was revocable where widow did not know what her statutory rights were and also was ignorant to a large extent of the amount of her husband’s estate. Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43, 1941 Va. LEXIS 248 (1941).
Widow must know or have opportunity to ascertain relative values of property. —
The legislature intended that, in order for an election to be effective, the party required to elect must know or have full opportunity to ascertain the relative values accruing before making an election. Batleman v. Rubin, 199 Va. 156 , 98 S.E.2d 519, 1957 Va. LEXIS 174 (1957) (quoting Simmons v. Simmons, 177 Va. 629 , 15 S.E.2d 43 (1941)).
Manner of renouncing. —
A widow cannot effectually renounce the provision made for her by the will of her husband, so as to entitle herself as distributee, but by declaration made within one year after the husband’s death, before the general court, or court having jurisdiction of the probate of the will, or by deed executed in the presence of two or more credible witnesses (now, under § 64.1-13, by acknowledged, or proven, and recorded writing). Kinnaird Ex'r v. Williams's Adm'r, 35 Va. (8 Leigh) 400, 1836 Va. LEXIS 70 (1836).
Under the circumstances of the case the widow was within her rights in renouncing the will, and the paper signed, acknowledged and recorded by her, and exhibited with the bill, was sufficient evidence of election and renunciation under this section. Showalter v. Showalter, 107 Va. 713 , 60 S.E. 48 , 1908 Va. LEXIS 132 (1908).
Effect of acceptance. —
The testator by his will, gave real and personal estate to his wife, and left part of his personal estate undisposed of. The wife did not renounce, but accepted, the provision made for her by the will. She was excluded, by the statute, from any share of her husband’s personal estate undisposed of by his will. Dupree's Adm'r v. Cary, 33 Va. (6 Leigh) 36, 1835 Va. LEXIS 11 (1835); Thornton v. Winston, 31 Va. (4 Leigh) 152, 1833 Va. LEXIS 6 (1833).
When the widow fails to renounce within a year, and thus by her inaction elects to abide by the will and accept the provisions, if any, made for her therein, she is not a mere donee under the instrument. She is considered a purchaser for value of the property willed to her for she has, by taking under the will, given up and released the absolute and paramount right secured her by statute which she could obtain by renunciation. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
No power to renounce conferred on guardian or committee. —
The language of this section contains no purpose or intent to give to the guardian or committee of an insane widow or widower the power to renounce the provisions of a will made for her or him, and thus, clearly there is no implication that can be justly drawn from the language that would confer such a power. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
Attempted renunciation of husband’s will filed by guardian of insane widow was held ineffective to accomplish the purpose desired. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
But if the widow is incompetent the court must either renounce or decline to renounce for her. It may not, in lieu of such action, enter into a business arrangement proposed for the widow by interested legatees. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
Test for competency to execute notice of claim. —
At the time an election is made under § 64.1-13, the surviving spouse must have the capacity to understand his right to elect against the will and receive a share of the estate established by law and to know that he is making such an election; competency to execute the notice of claim does not require a surviving spouse to know the specific amount that will be received as a result of such an election, and whether he exercises good judgment when making an election is not relevant to the issue of mental capacity to make such a choice. Jones v. Peacock, 267 Va. 16 , 591 S.E.2d 83, 2004 Va. LEXIS 26 (2004).
Trial court erred by applying the contract and deed standard of mental capacity to a father’s execution of a claim for an elective share of his deceased wife’s augmented estate; under the correct standard — that he had the capacity to understand his right to elect against the will and receive a share of the estate established by law and to know that he was making such an election — an executor failed to prove the father was not competent, as his doctors did not indicate he lacked the mental capacity to execute the notice of claim, and lay testimony indicated that he was alert and had read the claim before signing it. Jones v. Peacock, 267 Va. 16 , 591 S.E.2d 83, 2004 Va. LEXIS 26 (2004).
Interpretation with laws exempting state retirement and insurance plans from legal process. —
Trial court properly held that a widow had no claim on benefits from a decedent’s retirement and life insurance, which named his sister and niece as beneficiaries, as state laws which exempted such benefits from legal process, including §§ 51.1-124.4 , 51.1-510 , and 38.2-3339, existed as an exception to the augmented estate laws. Sexton v. Cornett, 271 Va. 251 , 623 S.E.2d 898, 2006 Va. LEXIS 5 (2006).
Facts court should consider. —
As to what facts and circumstances chancellor should consider in deciding to renounce or not to renounce a will for an incompetent widow or widower, see First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
Burden of proof. —
Trial court did not err by placing the burden of proving that investment accounts and land which a spouse owned when she died should be excluded from her augmented estate, pursuant to § 64.1-16.1, or by finding that the deceased spouse’s estate did not meet its burden of proof. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584, 2003 Va. LEXIS 102 (2003).
CIRCUIT COURT OPINIONS
Spouse’s signature not required. —
Plain statutory language for requirement of taking an elective share did not require that a surviving spouse sign the written claim for the elective share, as the statutory words “in person” modified only “before the court,” and did not modify“ by writing,” which was construed according to regular requirements for admission of recorded documents. Grubb v. Yacoub, 86 Va. Cir. 503, 2013 Va. Cir. LEXIS 64 (Fairfax County July 3, 2013).
Signature of power of attorney for surviving spouse valid. —
Claim for an elective share signed and properly acknowledged by the attorney-in-fact for the surviving husband pursuant to a power of attorney was statutorily valid, although it was not signed by the husband himself, as it met the requirements for recordation of documents generally. Grubb v. Yacoub, 86 Va. Cir. 503, 2013 Va. Cir. LEXIS 64 (Fairfax County July 3, 2013).
Nullity of election. —
Widow was entitled to summary judgment in an executor’s action to bar her from taking a general bequest made by testator in his duly probated last will and testament because the widow’s election was a nullity where the widow claimed her elective share under the mistaken belief that her pre-marital agreement with testator was void and unconscionable. Perez v. Draskinis, 89 Va. Cir. 298, 2014 Va. Cir. LEXIS 149 (Roanoke County Nov. 13, 2014).
Waiver. —
Wife waived her right to claim an elective share because the prenuptial agreement specifically stated that each party waived any and all rights of every kind, nature, and description as spouse or surviving spouse; the wife’s motion for an extension of time to file for the elective share was denied on the grounds that she waived her claim, pursuant to the terms and conditions of the prenuptial agreement. Algabi v. Dagvadorj, 106 Va. Cir. 153, 2020 Va. Cir. LEXIS 193 (Loudoun County Oct. 19, 2020).
Motion to reconsider. —
Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse’s elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County Nov. 4, 2005) (decided under prior law).
§ 64.2-303. Extension of time until after determination of action for construction of will or extent of augmented estate.
If (i) a will is of doubtful import as to the amount or value of the property the surviving spouse of the decedent is to receive thereunder or (ii) the composition or value of the augmented estate is uncertain, and an action to resolve such issues is pending, the court in which the action is pending shall, upon the application of the surviving spouse made within the six-month period set forth in § 64.2-302 , enter an order extending the time within which the surviving spouse may make a claim for an elective share. Such additional period within which to make a claim for an elective share shall not exceed 90 days after a final order has been entered in such suit, either by a trial court or any appellate court to which it is appealed.
History. Code 1950, § 64-14; 1968, c. 656, § 64.1-14; 1990, c. 831; 2012, c. 614.
Cross references.
For rules of court in civil actions, see Rules 3:1 through 3:23.
Law Review.
For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).
CASE NOTES
Suit to construe will of doubtful import. —
A widow brought suit against the executor of the estate of her deceased husband, and the beneficiaries named in his will, praying that the court construe an antenuptial contract made between her and testator, and certain parts of the will, and to declare: (1) whether the antenuptial contract was valid and binding on her; (2) whether the will cancelled or terminated the antenuptial contract; (3) whether $15,000 found in testator’s safe deposit box was an asset of testator’s estate or the property of two of the respondents; (4) whether she was under any obligation to assume in whole or in part the cost of maintaining the house formerly occupied by her and her husband. The suit was one to construe a will of doubtful import, and therefore the court had jurisdiction to extend the time within which she could accept or renounce the will. Batleman v. Rubin, 199 Va. 156 , 98 S.E.2d 519, 1957 Va. LEXIS 174 (1957) (decided under prior law).
§ 64.2-304. Rights upon claiming an elective share.
If a claim for an elective share is made, the surviving spouse is entitled to (i) one-third of the decedent’s augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent’s augmented estate if the decedent left no surviving children or their descendants. The surviving spouse is entitled to interest at the legal rate specified in § 6.2-301 from the date of the decedent’s death to the date of satisfaction of the elective share.
History. Code 1950, § 64-16; 1968, c. 656, § 64.1-16; 1978, c. 647; 1986, c. 526; 1990, c. 831; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).
Research References.
Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate; No. 15-447 Claim for Elective Share of Augmented Estate.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
Effect of renunciation. —
Widow’s renunciation of will will not disappoint testator’s will and unsettle his disposition of his property further than may be necessary to enforce her rights. Mitchells v. Johnsons, 33 Va. (6 Leigh) 461, 1835 Va. LEXIS 42 (1835); Morriss v. Garland, 78 Va. 215 , 1883 Va. LEXIS 31 (1883).
An election to take under the statute forfeits all rights enjoyed and provisions made for the widow or widower in the consort’s will. First Nat'l Exch. Bank v. Hughson, 194 Va. 736 , 74 S.E.2d 797, 1953 Va. LEXIS 142 (1953).
Section defines statutory share of renouncing widow. —
The statutory share of a widow who renounces the provisions made for her in her husband’s will is defined in this section and § 64.1-11. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
A renouncing widow is entitled to one third of the income earned on all the assets of the estate during the period of administration which is not used to pay funeral expenses, costs of administration and debts. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
A surviving spouse who has elected to take against the will of the deceased spouse is entitled to her statutory share of the income earned on all the personal assets of decedent’s estate during the period of administration. Alexandria Nat'l Bank v. Thomas, 213 Va. 620 , 194 S.E.2d 723, 1973 Va. LEXIS 197 (1973).
Compensation to legatees. —
Where the widow renounced the will, the profits of the property, real and personal, given to the wife for life by the will, which accrued during her life, shall be applied to compensate those of the testator’s devisees and legatees out of whose devises and legacies the widow’s dower and distributive share were taken. Mitchells v. Johnsons, 33 Va. (6 Leigh) 461, 1835 Va. LEXIS 42 (1835).
Where the widow renounced the will, two thirds of the land remaining after the assignment of the widow’s dower were to be applied to indemnify the legatees of the personal estate for the loss they sustained by the widow’s renunciation of the provision made for her by the will, and claim of her third of the personal estate. For this purpose the two thirds of the land were to be rented out and the proceeds applied to the satisfaction of the legatees. McReynolds v. Counts, 50 Va. (9 Gratt.) 242, 1852 Va. LEXIS 36 (1852).
Husband by his will gave to his wife certain personal estate absolutely and a tract of land for life, but after his death she renounced the will in the mode prescribed by the statute. She was not entitled to take under the will what was thereby given to her. But the property bequeathed to her was to be applied to compensate the legatees who were disappointed by her taking distributable share of the personal estate. Findley's Ex'rs v. Findley, 52 Va. (11 Gratt.) 434, 1854 Va. LEXIS 33 (1854).
Widow who does not renounce takes only what will gives her. —
When personal property is given to the wife by a will which she does not renounce, she takes only what the will gives her, according to the specific provision of this section, and necessarily the general provision of § 64.1-11, dealing with cases where there is no will or one that does not dispose of all personal property, does not apply. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312, 1958 Va. LEXIS 126 (1958) (commented on in 44 Va. L. Rev. 1393 (1958)).
And is not entitled to share in property as to which husband died intestate. —
Where a testator by his will gave to his wife one third of his personal property, and his disposition of the other two thirds was declared void so that as to it he in effect died intestate, his widow, unless she renounced the will, would take only the one third share that it gave her, and there was no merit to her argument that she was entitled, independently of the will, to the remaining two thirds by virtue of § 64.1-11. Newton v. Newton, 199 Va. 785 , 102 S.E.2d 312, 1958 Va. LEXIS 126 (1958) (commented on in 44 Va. L. Rev. 1393 (1958)).
Increase in value of estate where renunciation not recognized. —
Where executor-beneficiaries refused to recognize the right of the husband to receive his share of his wife’s estate at the time of his wife’s death or at the date of his renunciation and the estate increased in value, the executor-beneficiaries should not be permitted to profit by their own recalcitrant attitude. Edwards v. Cuthbert, 184 Va. 502 , 36 S.E.2d 1, 1945 Va. LEXIS 169 (1945).
CIRCUIT COURT OPINIONS
Discount of fractional shares conveyed. —
Where those liable for an elective share did not select the option to pay cash, but conveyed fractional interests in real estate to an heir, the value conveyed of the fractional interests meant ascertaining their fair market value on an individual basis without reference to what impact the transfer of such interest had on those who held title to the property as tenants in common. In re Estate of Smith, 67 Va. Cir. 33, 2005 Va. Cir. LEXIS 8 (Madison County Feb. 1, 2005) (decided under prior law).
§ 64.2-305. Augmented estate; exclusions; valuation.
-
The augmented estate means the decedent’s entire estate passing by will or intestate succession, real and personal, after payment of allowances and exemptions under Article 2 (§
64.2-309
et seq.) of this chapter, funeral expenses, charges of administration that shall not include federal or state transfer taxes, and debts, and to which is added the following amounts:
- The value of property, other than tangible personal property received by gift and the proceeds thereof, owned or acquired by the surviving spouse at the decedent’s death, to the extent the property is derived from the decedent by any means other than by will or intestate succession without full consideration in money or money’s worth;
- The value of property, other than tangible personal property received by gift and the proceeds thereof, derived by the surviving spouse from the decedent without full consideration in money or money’s worth by any means other than by will or intestate succession, and transferred by the surviving spouse at any time during the marriage to a person other than the decedent, which would have been includable in the surviving spouse’s augmented estate if the surviving spouse had predeceased the decedent; and
-
The value of property transferred to anyone other than a bona fide purchaser by the decedent at any time during the marriage to the surviving spouse, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent
did not receive full consideration in money or money’s worth for the transfer, if the transfer was any of the following types:
- Any transfer under which the decedent retained for his life, for any period not ascertainable without reference to his death, or for any period which does not in fact end before his death, the possession or enjoyment of, or the right to income from, the property;
- Any transfer to the extent that the decedent retained for his life, for any period not ascertainable without reference to his death, or for any period which does not in fact end before his death, the power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for his own benefit;
- Any transfer whereby property is held at the time of the decedent’s death by the decedent and another with right of survivorship; or
- Any transfer made to or for the benefit of a donee within the calendar year of the decedent’s death or any of the five preceding calendar years to the extent that the aggregate value of the transfers to the donee exceeds the amount specified in § 2503(b) of the Internal Revenue Code of 1986, as amended, for that calendar year, without regard to whether the federal gift tax exclusion applies to the transfer.
- Notwithstanding the provisions of this section, the augmented estate shall not include (i) the value of any property transferred by the decedent during marriage with the written consent or joinder of the surviving spouse; (ii) the value of any property, its income, or proceeds received by the decedent, before or during the marriage to the surviving spouse, by gift, will, intestate succession, or any other method or form of transfer to the extent it was (a) received without full consideration in money or money’s worth from a person other than the surviving spouse, and (b) maintained by the decedent as separate property; (iii) any transfer made to anyone other than the surviving spouse prior to January 1, 1991, to the extent that such transfer was irrevocable on that date; or (iv) the value of any property excluded from the augmented estate pursuant to § 64.2-317 .
-
Property is valued as of the decedent’s death, except that property irrevocably transferred during the lifetime of the decedent is valued as of the date the transferee came into possession or enjoyment of the property if such date precedes the date of
the decedent’s death.
- Life estates and remainder interests are valued in the manner prescribed in Chapter 5 (§ 55.1-500 et seq.) of Title 55.1, and deferred payments and estates for years are discounted to present value using the interest rate specified in § 55.1-500 .
- The value of an insurance policy that is irrevocably transferred during the lifetime of a decedent is the cost of a comparable policy on the date of the transfer or, if such a policy is not readily available, the policy’s interpolated terminal reserve. The value of any premiums paid on an insurance policy owned by another person is only the amount of the premiums paid and not the insurance purchased or maintained with such premiums.
- An initial interest in property owned as a joint tenant with survivorship is valued at the time the interest is acquired, and a further interest received upon the death of a cotenant is valued at the time of the cotenant’s death. Property owned jointly by persons married to each other is rebuttably presumed to have been acquired with contributions of equal value by each tenant. The mere creation of an indebtedness secured by jointly owned property is not a contribution to its acquisition, but any satisfaction of such an indebtedness is a contribution. An interest in a tenancy by the entireties is valued as if it were an interest in a joint tenancy with survivorship. Joint accounts in financial institutions are valued in accordance with the provisions of Article 2 (§ 6.2-604 et seq.) of Chapter 6 of Title 6.2.
History. 1990, c. 831, § 64.1-16.1; 1992, cc. 617, 647; 1998, c. 234; 1999, c. 38; 2007, c. 308; 2012, c. 614; 2014, c. 532.
Editor’s note.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “Chapter 5 (§ 55.1-500 et seq.) of Title 55.1” for “Article 2 (§ 55- 269.1 et seq.) of Chapter 15 of Title 55” and “55.1-500” for “55-269.1.”
The 2014 amendments.
The 2014 amendment by c. 532, in subdivision A 3 d, substituted “the amount specified in § 2503(b) of the Internal Revenue Code of 1986, as amended, for” for “$10,000 in,” inserted “without regard to whether the federal gift tax exclusion applies to the transfer,” and made a minor stylistic change.
Law Review.
For article, “Virginia’s Augmented Estate System: An Overview,” see 24 U. Rich. L. Rev. 513 (1990).
For 1992 survey of wills, trusts, and estates law in Virginia, see 26 U. Rich. L. Rev. 873 (1992).
For an article relating to developments in the law of wills, trusts and estates in 1998, see 32 U. Rich. L. Rev. 1405 (1998).
For a review of wills, trusts, and estates law in Virginia for year 1999, see 33 U. Rich. L. Rev. 1075 (1999).
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
For 2003/2004 survey of the law of wills, trusts and estates, see 39 U. Rich. L. Rev. 447 (2004).
For 2006 survey article, “Wills, Trusts, and Estates,” see 41 U. Rich. L. Rev. 321 (2006).
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.05 Determining and Satisfying the Elective Share. Cox.
Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate, et seq.; No. 15-215. Clause Devising Real Estate; No. 16-505. Deed of Gift for Personal Property — Artwork, et seq.
Michie’s Jurisprudence.
For related discussion, see 9B M.J. Husband and Wife, § 26.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
Applicability. —
In arguing that her joint tenancy with her mother was owned unequally, a Chapter 7 debtor’s reliance on § 64.2-305 was misplaced, as that provision confined its applicability to married spouses. Scott v. Hoole (In re Hoole), No. 17-50262, 2018 Bankr. LEXIS 810 (Bankr. W.D. Va. Mar. 21, 2018).
Rights subordinate to payment of estate debts. —
This section plainly expresses the intent that rights be subordinate to payment of estate debts. The debtor’s interest, regardless of when it vests, is in the value of the augmented estate. Murray v. Mares, 147 Bankr. 688, 1992 Bankr. LEXIS 1839 (Bankr. E.D. Va. 1992).
Indebtedness. —
Where both decedent and her husband, as co-makers of a $50,000 note, became personally liable to the holder of the note for the full amount owed and as between themselves, jointly and severally liable, and because both decedent and her husband became subject to a common burden to be borne equally, each was entitled to the right of contribution from the other for one-half of the joint indebtedness evidenced by the note, the husband should not have been charged with more than one-half of the total indebtedness. Tuttle v. Webb, 284 Va. 319 , 731 S.E.2d 909, 2012 Va. LEXIS 162 (2012).
Separate interest. —
Trial court did not err in finding that the late wife’s separate property, as identified in the premarital agreement she entered into with the husband, was not to be included in his elective share upon her death, as the plain language of the premarital agreement compelled that result; the husband’s claim that the property had to be maintained or repaired in order to keep it separate had to be rejected, as the language of this section referred to keeping a legal interest in the property separate, which the late wife did. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397, 2005 Va. LEXIS 97 (2005).
Burden of proof. —
Trial court did not err by placing the burden of proving that investment accounts and land which a spouse owned when she died should be excluded from her augmented estate, pursuant to § 64.1-16.1, or by finding that the deceased spouse’s estate did not meet its burden of proof. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584, 2003 Va. LEXIS 102 (2003).
CIRCUIT COURT OPINIONS
Editor’s note. —
The cases below were decided under former Title 64.1 and prior law.
No waiver of right to claim elective share. —
Decedent’s husband was awarded his elective share of the decedent’s estate, plus his spousal allowances, because the absence of a written premarital or marital agreement, in which the husband waived his right to claim his elective share of the decedent’s augmented estate, was fatal to the estate’s argument that the husband’s claims for his elective share and for the family allowance be denied due to concerns of fairness to the decedent’s son, daughter, and grandson. Higham v. Williams, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).
Group life insurance policy included within estate property. —
The terms “estate” and “property” include, within their given definitions, group life insurance policies. Felix-Aranibar v. Felix, 59 Va. Cir. 357, 2002 Va. Cir. LEXIS 231 (Arlington County Aug. 12, 2002).
Pre-marriage transfers. —
Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent’s augmented estate, the surviving spouse was not entitled to an elective share distribution § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County Apr. 11, 2006).
Transferred property included in augmented estate because spouse’s consent to transfer was not in writing. —
Where a decedent had transferred real estate to her daughter, under § 64.1-16.1, the value of this property had to be included in the augmented estate because the decedent reserved a life estate in the property and it was gratuitously transferred less than five years before her death. That her husband did not object to the transfer was immaterial; as he did not consent to the transfer in writing, the property could not be excluded under § 64.1-16.1.Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County May 25, 2006).
Widow raised fact issue as to whether decedent’s real property was maintained as his separate property. —
Summary judgment was denied on the issue of whether real property which was willed to the decedent and was titled in the decedent’s name only was part of the decedent’s augmented estate; the widow was entitled to the opportunity to prove that at least part of the value of the real estate was attributable to the personal efforts of either party during the marriage or to contributions of marital property as described in subdivision A 1 of § 20-107.3 .Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County Oct. 24, 2002).
Titling of real estate is not conclusive as to whether the property is maintained as separate property. —
Titling of real estate in an individual name is only one consideration in determining whether the property has been maintained as separate property under clause (ii) of subsection B of § 64.1-16.1.Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County Oct. 24, 2002).
Decedent’s separate property transmuted into marital property by spouse’s contributions. —
Value of a house a decedent had gratuitously transferred was part of the augmented estate. Though it was her separate property when she married, as her husband’s wages were used to make improvements and repairs to the house, it was transmuted into marital property, thereby rendering the separate property limitation of § 64.1-16.1 inapplicable. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County May 25, 2006).
Fair market value of fractional interests. —
Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse’s elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County Nov. 4, 2005).
Decedent’s husband was awarded his elective share of the decedent’s estate, plus his spousal allowances, because the value of bank accounts in the decedent’s name, which were payable on her death to her son or her grandson, were included in the decedent’s augmented estate; the full value of accounts the decedent owned as joint tenants with rights of survivorship with her son, daughter, and grandson were also included in the augmented estate because the son, daughter and grandson had no practical access to the accounts when they remained the decedent’s assets solely controlled by her. Higham v. Williams, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).
Property included in augmented estate. —
Decedent’s husband was awarded his elective share of the decedent’s estate, plus his spousal allowances, because the entire value of properties the decedent owned with her son and daughter as joint tenants were included in her augmented estate; the estate failed to meet its burden of proving the value of the son’s interest in the property he owned with the decedent, and the daughter paid no part of the consideration for the acquisition of the properties she owned with the decedent. Higham v. Williams, 2008 Va. Cir. LEXIS 27 (Fairfax County Mar. 28, 2008).
OPINIONS OF THE ATTORNEY GENERAL
Virginia Retirement System benefits
are not part of the probate estate and are not subject to probate tax, even if the benefits are included in the calculation of an augmented estate under this section. See opinion of Attorney General to The Honorable Hayden H. Horney, Clerk, Wythe County Circuit Court, 04-25 (5/19/04).
§ 64.2-306. Charging spouse with the value of property received; liability of others for balance of elective share.
- In determining the elective share, the value of property included in the augmented estate that passes or has passed to the surviving spouse, or that would have passed to the spouse but was disclaimed, is applied first to satisfy the elective share in order to reduce any contributions due from other recipients of transfers included in the augmented estate.
- The recipients of the remaining property of the augmented estate are liable to contribute the balance of the elective share and any interest thereon in proportion to the value of their interests.
- The only persons subject to contribution to make up the elective share are (i) an original transferee from or appointee of the decedent, and any subsequent gratuitous inter vivos donee or person claiming by will or intestate succession, to the extent such person has the property or its proceeds on or after the date of the decedent’s death, and (ii) a fiduciary, as to the property under the fiduciary’s control at or after the time a fiduciary receives notice that a surviving spouse has claimed an elective share in the decedent’s estate. A corporate fiduciary shall not be considered to have notice until it receives notice at its address as shown in the decedent’s estate papers in the clerk’s office or, if there are no such papers or no address is shown therein, at the office of its registered agent.No other party is subject to contribution to make up the elective share even though the party makes a payment or transfers an item of property or other benefit to any person with actual knowledge that a surviving spouse has claimed an elective share in the decedent’s estate.
- Upon the petition of the surviving spouse, the decedent’s personal representative, or any party in interest, the court having jurisdiction over the administration of the decedent’s estate shall determine the amount of the elective share and the ratable portion of the elective share attributable to each person liable to contribution. Such petition may be brought against fewer than all persons from whom relief could be sought, but no person is subject to contribution in any amount greater than that which he would have been if relief had been secured against all persons subject to contribution.
-
Within 30 days after the court’s determination of the contributions due under subsection D becomes final and not subject to further appeal, any person liable to the surviving spouse for contribution may file with the court a written statement specifying
any of the following methods for satisfying his contribution and interest liability:
- Conveyance to the surviving spouse of a portion of the property included in the augmented estate equal in value to his liability on the date the contribution statement is filed, or if, on the date of filing, the value of the property included in the augmented estate is less than his liability, conveyance to the surviving spouse of the entire property included in the augmented estate in full satisfaction;
- Payment of the value of his liability in cash or, upon agreement of the surviving spouse, other property; or
- Partial conveyance and partial payment under subdivisions 1 and 2, provided that the value conveyed and paid is equal to his liability.In the event a contribution statement is not filed within 30 days, the court shall enter an order specifying the method by which a person’s liability to the surviving spouse shall be satisfied.
History. 1990, c. 831, § 64.1-16.2; 1992, cc. 617, 647; 2007, c. 308; 2012, c. 614.
Law Review.
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.04 The Augmented Estate, et seq. Cox.
Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate, et seq.
CASE NOTES
Burden of proof. —
A petition to establish the amount of an elective share may be filed by the surviving spouse, the decedent’s personal representative, or any party in interest. Regardless of who files the petition invoking judicial intervention, the party seeking inclusion of property under subsection A of § 64.1-16.1 has the burden of proof under that subsection and the party seeking exclusion of property under subsection B of § 64.1-16.1 carries the burden of establishing such exclusion. Chappell v. Perkins, 266 Va. 413 , 587 S.E.2d 584, 2003 Va. LEXIS 102 (2003) (decided under prior law).
CIRCUIT COURT OPINIONS
Editor’s note. —
Some of the cases below were decided under former Title 64.1 and prior law.
Designation of beneficiary. —
Where a state employee had designated an ex-wife as beneficiary of any accumulated retirement contributions and because the parties’ divorce was prior to July 1, 1993, §§ 20-111.1 , 64.1-16.2 C, and 64.1-59 did not apply; as a result, the designation in favor of the ex-wife was not revoked when the parties were divorced. Va. Ret. Sys. v. Bonaparte, 61 Va. Cir. 304, 2003 Va. Cir. LEXIS 129 (Richmond Mar. 7, 2003).
Discount of fractional shares conveyed. —
Where those liable for an elective share did not select the option to pay cash, but conveyed fractional interests in real estate to an heir, the value conveyed of the fractional interests meant ascertaining their fair market value on an individual basis without reference to what impact the transfer of such interest had on those who held title to the property as tenants in common. In re Estate of Smith, 67 Va. Cir. 33, 2005 Va. Cir. LEXIS 8 (Madison County Feb. 1, 2005).
Fair market value of fractional interests. —
Although the trial court denied the motion to reconsider most parts of its ruling that identified the owners of property due to the death of the decedent, that set the amount of the augmented estate, that determined the amount of the surviving spouse’s elective share, and that calculated the amount of the respective contributions from those responsible for satisfying the elective share, it granted that motion regarding its failure to evaluate the evidence of additional charges and expenses, and because it did not address the impact that such evidence had on the fair market value of the fractional interests in the property designated on the statements setting forth the required contributions. Estate of Smith, 69 Va. Cir. 259, 2005 Va. Cir. LEXIS 156 (Madison County Nov. 4, 2005).
Proceeds from sale of property in augmented estate. —
Half of the proceeds from the sale of property a husband and a wife jointly owned was included in the wife’s augmented estate; because it was not established that the deposit of the wife’s share into the husband’s savings account fell under one of the exceptions in the statute, her share of the proceeds was unaffected by the husband’s deposit into his savings account. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).
Pre-marriage transfers. —
Because § 64.1-16.1 did not include any pre-marriage transfers in a decedent’s augmented estate, the surviving spouse was not entitled to an elective share distribution under § 64.1-16.2 in property that the decedent had transferred to a trust before their marriage. Estate of Shoemaker-Liebel, 70 Va. Cir. 361, 2006 Va. Cir. LEXIS 50 (Fairfax County Apr. 11, 2006).
Assets in decedent’s checking account received by spouse by right of survivorship. —
Pursuant to § 64.1-16.2, a decedent’s assets in checking accounts that her husband received by right of survivorship were applied first to satisfy his elective share. Reed v. Reed, 71 Va. Cir. 78, 2006 Va. Cir. LEXIS 119 (Rockingham County May 25, 2006).
Surviving spouse protected. —
Husband was protected because any transfers by the husband, the surviving spouse, did not put him at risk of disinheritance, and the decision to not include transfers from joint bank accounts in the wife’s augmented estate preserved the purpose of the statute. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).
Joint annuity account. —
Transferred total of money into a joint annuity account could be marital property rather than separate and individual contributions because funds from a wife’s retirement account and a husband’s retirement account were deposited into the wife’s savings account, a joint account, before being transferred into the annuity account; it was not established by clear and convincing evidence that a wife and a husband intended a joint annuity account to be divided unequally. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).
Money transferred to private accounts marital property. —
Money transferred out of a joint account to the husband’s private accounts constituted marital property belonging to the husband, not separate property, because there was no evidence rebutting the presumption that the original amount remained segregated. Grubb v. Yacoub, 88 Va. Cir. 98, 2014 Va. Cir. LEXIS 8 (Fairfax County Mar. 18, 2014).
§ 64.2-307. Rights in family residence.
Until the surviving spouse’s rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent’s augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.
History. 1990, c. 831, § 64.1-16.4; 2012, c. 614.
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.06 Rights in Family Residence. Cox.
Virginia Forms (Matthew Bender). No. 15-401 Checklist for Probate and Administration, et seq.
CIRCUIT COURT OPINIONS
Expenses not allowed. —
Spouse’s payments for lawn maintenance, pest control, and cleaning expenses were not reimburseable under § 64.1-16.4.Estate of Spears v. Spears, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008) (decided under prior law).
§ 64.2-308. Statutory rights barred by desertion or abandonment.
- If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted the deceased spouse shall be barred of all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.
- If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child’s estate by intestate succession.
History. 1990, c. 831, § 64.1-16.3; 1992, c. 795; 2012, c. 614.
Law Review.
For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).
For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).
For article, “Undeserving Heirs?—The Case of the ‘Terminated Parent’,” see 40 U. Rich. L. Rev. 547 (2006).
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.08 Loss of Elective Share by Waiver or Abandonment. Cox.
Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate, et seq.; No. 15-447. Claim for Elective Share of Augmented Estate.
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Executors and Administrators, §§ 12.1, 12.2.
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
Definition of “abandonment.” —
Mindful of the definition of the term “abandonment” in domestic relations cases, when resolving whether a spouse seeking an elective share of the augmented estate of a deceased spouse abandoned the deceased spouse, the word “abandonment” means a termination of the normal indicia of a marital relationship combined with an intent to abandon the marital relationship. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885, 2008 Va. LEXIS 3 (2008).
Willful abandonment. —
Spouse seeking an elective share of the augmented estate of a deceased spouse was not entitled to such relief because the spouse willfully abandoned the decedent before and continuing until the decedent’s death, as, properly considering facts occurring both before and after the spouse and decedent voluntarily separated, the spouse’s conduct showed a lack of support for the decedent and the marital relationship, because: (1) while living together or apart, the spouse gave the decedent little or no support or care during the decedent’s illnesses and recoveries; (2) financially, the decedent managed rental properties the decedent brought into the marriage alone while living with the spouse, who did not contribute to the decedent’s support in this regard; (3) after the parties’ separation, the spouse apparently did not communicate with the decedent in any meaningful way since the spouse did not know the decedent lived in another state and did not acknowledge the decedent’s final illness; (4) the spouse did not support the decedent financially, emotionally, or physically; (5) nothing showed the spouse tried or intended to reconcile with the decedent; and (6) when the decedent died, the spouse had ceased any marital duties. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885, 2008 Va. LEXIS 3 (2008).
Time period for determining abandonment. —
When determining whether a spouse seeking an elective share of the augmented estate of a deceased spouse willfully abandoned the deceased spouse, the relevant time period for determining abandonment for purposes of § 64.1-16.3 extends to the time of the deceased spouse’s death and is not limited to the moment of separation, or the filing of a petition for divorce, as it is when abandonment is the ground upon which a divorce is sought. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885, 2008 Va. LEXIS 3 (2008).
Clear language of subsection A of § 64.1-16.3 requires a court to determine whether a spouse’s willful desertion or abandonment of a deceased spouse of whose estate the living spouse claims a share continued until the death of the spouse, and that determination is not limited to consideration of actions occurring prior to a separation, should one have occurred. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885, 2008 Va. LEXIS 3 (2008).
Agreed separation or petition for divorce. —
When determining whether a spouse seeking an elective share of the augmented estate of a deceased spouse willfully abandoned the deceased spouse, an agreed separation or petition for divorce is relevant evidence of the termination of cohabitation, but is not evidence that defeats a finding of willful abandonment. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885, 2008 Va. LEXIS 3 (2008).
Mixed question of fact and law. —
Whether a spouse seeking an elective share of a deceased spouse’s augmented estate abandoned the deceased spouse is a mixed question of law and fact, so a reviewing court gives deference to a trial court’s findings of fact and views the facts in the light most favorable to the prevailing party, but the reviewing court reviews the trial court’s application of the law to those facts de novo. Purce v. Patterson, 275 Va. 190 , 654 S.E.2d 885, 2008 Va. LEXIS 3 (2008).
Abandonment not shown. —
Widow was permitted to make the elections for homestead and personal property allowances because she had not abandoned her husband; a separation was for a relatively short time, there were telephone conversations about the wife returning, and there were attempts made to visit the husband in a nursing home. The widow rejected a suggestion that she consider a divorce and expressed love for her husband. Phillips v. Good, 94 Va. Cir. 504, 2016 Va. Cir. LEXIS 221 (Shenandoah County Nov. 22, 2016).
CIRCUIT COURT OPINIONS
Right to augmented estate. —
Where a wife left the marital home after being told by her husband to get out, she did not willfully desert or abandon the husband and did not forfeit her right to the husband’s augmented estate. Royer v. Royer, 65 Va. Cir. 476, 2004 Va. Cir. LEXIS 280 (Richmond Sept. 16, 2004).
Presumption of marriage not rebutted. —
Husband could be the administrator of a decedent’s estate because a certified copy of the marriage between the husband and decedent was admitted into evidence, and it created a presumption of a lawful marriage; the presumption of marriage had not been rebutted, and thus, the husband was the surviving spouse of the decedent and her sole heir because the decedent left the marital home due to medical conditions, and allegations of drunkenness and abuse were undermined by multiple witnesses. Foltz v. Shadid, 2018 Va. Cir. LEXIS 5 (Page County Jan. 13, 2018).
Article 1.1. Elective Share of Surviving Spouse of Decedent Dying on or after January 1, 2017.
§ 64.2-308.1. Applicability; definitions.
- The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying on or after January 1, 2017.
- As used in this article, unless the context requires a different meaning:“Decedent’s non-probate transfers to others” means the amounts that are included in the augmented estate under § 64.2-308.6 .“Fractional interest in property held in joint tenancy with the right of survivorship,” whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.“Marriage,” as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent’s surviving spouse.“Non-adverse party” means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or non-exercise of the power that he possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.“Power” or “power of appointment” includes a power to designate the beneficiary of a beneficiary designation.“Presently exercisable general power of appointment” means a power of appointment under which, at the time in question, the decedent, whether or not he then had the capacity to exercise the power, held a power to create a present or future interest in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.“Property” includes values subject to a beneficiary designation.“Right to income” includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.“Transfer,” as it relates to a transfer by or of the decedent, includes (i) an exercise or release of a presently exercisable general power of appointment held by the decedent, (ii) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (iii) an exercise, release, or lapse of a general power of appointment that the decedent created in himself and of a power described in subdivision 2 b of § 64.2-308.6 that the decedent conferred on a non-adverse party.
History. 2016, cc. 187, 269.
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.01 In Virginia — Overview, et seq. Cox.
Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate, et seq.; No. 14-101 Antenuptial Agreement, et seq.; No. 14-215. Release and Waiver of Marital Rights; No. 15-307 Waiver of Spouse’s Rights Under Augmented Estate Against Trust Assets; No. 15-401 Checklist for Probate and Administration.
§ 64.2-308.2. Dower or curtesy abolished.
The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.
The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.
History. 2016, cc. 187, 269.
§ 64.2-308.3. Elective share amount; effect of election on statutory benefits; non-domiciliary.
- The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.
- If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.
- The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.
History. 2016, cc. 187, 269.
Research References.
Virginia Forms (Matthew Bender). No. 15-447 Claim for Elective Share of Augmented Estate, et seq.
§ 64.2-308.4. Composition of the augmented estate; marital property portion.
-
Subject to §
64.2-308.9
, the value of the augmented estate, to the extent provided in §§
64.2-308.5
,
64.2-308.6
,
64.2-308.7
, and
64.2-308.8
, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:
- The decedent’s net probate estate;
- The decedent’s non-probate transfers to others;
- The decedent’s non-probate transfers to the surviving spouse; and
- The surviving spouse’s property and non-probate transfers to others.
-
The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection A multiplied by the following percentage:If the decedent and the spouse were
married to each other: The percentage is:
Less than 1 year 3%1 year but less than 2 years 6%2 years but less than 3 years 12% 3 years but less than 4 years 18%4 years but less than 5 years 24%5 years but less than 6 years 30%6 years but less than 7 years 36%7 years but less than 8 years 42%8 years but less than 9 years 48%9 years but less than 10 years 54%10 years but less than 11 years 60%1 years but less than 12 years 68%12 years but less than 13 years 76%13 years but less than 14 years 84%14 years but less than 15 years 92%15 years or more 100%
History. 2016, cc. 187, 269.
§ 64.2-308.5. Decedent’s net probate estate.
The value of the augmented estate includes the value of the decedent’s probate estate, reduced by funeral and administration expenses (excluding federal or state transfer taxes), homestead allowance, family allowances, exempt property, and enforceable claims.
History. 2016, cc. 187, 269.
§ 64.2-308.6. Decedent’s non-probate transfers to others.
The value of the augmented estate includes the value of the decedent’s non-probate transfers to others, not included under § 64.2-308.5 , of any of the following types, in the amount provided respectively for each type of transfer:
-
Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent’s death. Property included under this category consists of:
- Property over which the decedent, alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.
- The decedent’s fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent’s fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent’s death to a surviving joint tenant other than the decedent’s surviving spouse.
- The decedent’s ownership interest in property or accounts held in Payable on Death or Transfer on Death designations or co-ownership registration with the right of survivorship. The amount included is the value of the decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.
- Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.
- Property transferred in any of the following forms by the decedent during marriage:
- Property that passed during marriage and during the two-year period next preceding the decedent’s death as a result of a transfer by the decedent if the transfer was of any of the following types:
a. Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent’s right terminated at or continued beyond the decedent’s death. The amount included is the value of the fraction of the property to which the decedent’s right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent’s estate or surviving spouse.
b. Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a non-adverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent’s estate, or creditors of the decedent’s estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent’s death to or for the benefit of any person other than the decedent’s surviving spouse or to the extent the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.
a. Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under subdivision 1 a, b, or c, or under subdivision 2, if the right, interest, or power had not terminated until the decedent’s death. The amount included is the value of the property that would have been included under those subdivisions if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent’s estate, spouse, or surviving spouse. As used in this subdivision, “termination,” with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in subdivision 1 a, “termination” occurs when the power terminated by exercise or release, but not otherwise.
b. Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under subdivision 1 d had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.
c. Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent’s surviving spouse. The amount included is the value of the transferred property to the extent the transfers to any one donee in either of the two years next preceding the date of the decedent’s death exceeded the amount excludable from taxable gifts under 26 U.S.C. § 2503(b), or its successor, on the date of the gift.
History. 2016, cc. 187, 269.
Research References.
Virginia Forms (Matthew Bender). No. 5-1105 Petition for Contribution to Augmented Estate; No. 16-1408 Release of Marital Rights by Non-Owning Spouse.
§ 64.2-308.7. Decedent’s non-probate transfers to the surviving spouse.
Excluding property passing to the surviving spouse under the federal social security system, the value of the augmented estate includes the value of the decedent’s non-probate transfers to the decedent’s surviving spouse, which consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:
- The decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant;
- The decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, or with Payable on Death or Transfer on Death designations to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner; and
- All other property that would have been included in the augmented estate under subdivision 1 or 2 of § 64.2-308.6 had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.
History. 2016, cc. 187, 269.
§ 64.2-308.8. Surviving spouse’s property and non-probate transfers to others.
-
Except to the extent included in the augmented estate under §
64.2-308.5
or
64.2-308.7
, the value of the augmented estate includes the value of:
-
Property that was owned by the decedent’s surviving spouse at the decedent’s death, including:
- The surviving spouse’s fractional interest in property held in joint tenancy with the right of survivorship;
- The surviving spouse’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
- Property that passed to the surviving spouse by reason of the decedent’s death, but not including the spouse’s right to homestead allowance, family allowance, exempt property, or payments under the federal social security system.
- Property that would have been included in the surviving spouse’s non-probate transfers to others, other than the spouse’s fractional and ownership interests included under subdivision 1 a or b, had the spouse been the decedent.
-
Property that was owned by the decedent’s surviving spouse at the decedent’s death, including:
- Property included under this section is valued at the decedent’s death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subdivision A 1 a or b, the values of the spouse’s fractional and ownership interests are determined immediately before the decedent’s death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subdivision A 2, proceeds of insurance that would have been included in the spouse’s non-probate transfers to others under subdivision 1 d of § 64.2-308.6 are not valued as if the spouse were deceased.
- The value of property included under this section is reduced by enforceable claims against the surviving spouse.
History. 2016, cc. 187, 269.
§ 64.2-308.9. Exclusions, valuation, and overlapping application.
-
The value of any property is excluded from the decedent’s non-probate transfers to others:
- To the extent that the decedent received adequate and full consideration in money or money’s worth for a transfer of the property; or
- If the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.
-
- The value of any property otherwise included under § 64.2-308.5 , 64.2-308.6 , or 64.2-308.7 , and its income or proceeds, is excluded from the decedent’s net probate estate, decedent’s non-probate transfers to others, and decedent’s non-probate transfers to the surviving spouse to the extent that such property was transferred to or for the benefit of the decedent, before or during the marriage to the surviving spouse, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money’s worth from a person other than the surviving spouse and (ii) maintained by the decedent as separate property. B. 1. The value of any property otherwise included under § 64.2-308.5 , 64.2-308.6 , or 64.2-308.7 , and its income or proceeds, is excluded from the decedent’s net probate estate, decedent’s non-probate transfers to others, and decedent’s non-probate transfers to the surviving spouse to the extent that such property was transferred to or for the benefit of the decedent, before or during the marriage to the surviving spouse, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money’s worth from a person other than the surviving spouse and (ii) maintained by the decedent as separate property.
- The value of any property otherwise included under § 64.2-308.8 , and its income or proceeds, is excluded from the surviving spouse’s property and non-probate transfers to others to the extent that such property was transferred to or for the benefit of the surviving spouse, before or during the marriage to the decedent, by gift, will, transfer in trust, intestate succession, or any other method or form of transfer to the extent that it was (i) transferred without full consideration in money or money’s worth from a person other than the decedent and (ii) maintained by the surviving spouse as separate property.
-
The value of property:
- Included in the augmented estate under § 64.2-308.5 , 64.2-308.6 , 64.2-308.7 , or 64.2-308.8 is reduced in each category by enforceable claims against the included property; and
-
Includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement
plan, or any similar arrangement, exclusive of the federal social security system. Except as provided herein for interests passing to a surviving spouse, life estates and remainder interests are valued in the manner prescribed
in Chapter 5 (§
55.1-500
et seq.) of Title 55.1 and deferred payments and estates for years are discounted to present value using the interest rate specified in §
55.1-500
. In valuing partial and contingent interests passing to the surviving spouse, and beneficial interests in trust, the following special rules apply:
-
The value of the beneficial interest of a spouse shall be the entire fair market value of any property held in trust if the decedent was the settlor of the trust, if the trust is held for the exclusive benefit of the surviving spouse during the surviving
spouse’s lifetime, and if the terms of the trust meet the following requirements:
- During the lifetime of the surviving spouse, the trust is controlled by the surviving spouse or one or more trustees who are non-adverse parties;
- The trustee shall distribute to or for the benefit of the surviving spouse the entire net income of the trust at least annually;
- The trustee is permitted to distribute to or for the benefit of the surviving spouse out of the principal of the trust such amounts and at such times as the trustee, in its discretion, determines for the health, maintenance, and support of the surviving spouse; and
- In exercising discretion, the trustee may be authorized or required to take into consideration all other income assets and other means of support available to the surviving spouse.
- To the extent that the partial or contingent interest is dependent upon the occurrence of any contingency that is not subject to the control of the surviving spouse and that is not subject to valuation by reference to the mortality and annuity tables set forth in §§ 55.1-501 through 55.1-506 , the contingency will be conclusively presumed to result in the lowest possible value passing to the surviving spouse.
- To the extent that the valuation of a partial or contingent interest is dependent upon the life expectancy of the surviving spouse, that life expectancy shall be conclusively presumed to be no less than 10 years, regardless of the actual attained age of the surviving spouse at the decedent’s death.
-
The value of the beneficial interest of a spouse shall be the entire fair market value of any property held in trust if the decedent was the settlor of the trust, if the trust is held for the exclusive benefit of the surviving spouse during the surviving
spouse’s lifetime, and if the terms of the trust meet the following requirements:
- In case of overlapping application to the same property of the subsections or subdivisions of § 64.2-308.6 , 64.2-308.7 , or 64.2-308.8 , the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.
History. 2016, cc. 187, 269; 2018, c. 301.
Editor’s note.
As enacted by Acts 2016, cc. 187 and 269, this section contained two subdivision C 1 designations. The first subdivision was redesignated as subsection C at the direction of the Virginia Code Commission.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “Chapter 5 (§ 55.1-500 et seq.) of Title 55.1” for “Article 2 (§ 55-269.1 et seq.) of Chapter 15 of Title 55,” “55.1-500” for “55-269.1” and “55.1-501 through 55.1-506 ” for “55-271 through 55-277.”
The 2018 amendments.
The 2018 amendment by c. 301 inserted “that” following “extent” throughout subsections A and B; in subdivision B 1, inserted “or 64.2-308.7 ” and “and decedent’s non-probate transfers to the surviving spouse”; and made stylistic changes.
Law Review.
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
§ 64.2-308.10. Sources from which elective share payable.
-
In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others:
- Amounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9 that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent’s death pursuant to the decedent’s exercise of a power of appointment over property not included in the augmented estate;
- Amounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7 ; and
- The marital property portion of amounts included in the augmented estate under § 64.2-308.8 .
- The marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.
- If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent’s net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent’s non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent’s net probate estate and that portion of the decedent’s non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent’s net probate estate and of that portion of the decedent’s non-probate transfers to others in proportion to the value of their interests therein.
- If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent’s non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent’s non-probate transfers to others in proportion to the value of their interests therein.
- The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.
History. 2016, cc. 187, 269; 2018, c. 301.
The 2018 amendments.
The 2018 amendment by c. 301 rewrote subdivision A 1, which read “The value of property excluded from the augmented estate under subsection A of § 64.2-308.9 , which passes or has passed to the surviving spouse.”
Law Review.
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
§ 64.2-308.11. Personal liability of recipients.
- Only original recipients of the decedent’s non-probate transfers to others, and the donees of the recipients of the decedent’s non-probate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse’s elective share amount. A person liable to make contribution may choose to give up the proportional part of the decedent’s non-probate transfers to him or to pay the value of the amount for which he is liable in cash, or, upon agreement of the surviving spouse, other property.
- If any section or part of any section of this article is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent’s non-probate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in § 64.2-308.10 , to the person who would have been entitled to it were that section or part of that section not preempted.
History. 2016, cc. 187, 269.
§ 64.2-308.12. Proceeding for elective share; time limit.
- The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent’s will to probate or (ii) the qualification of an administrator on the decedent’s intestate estate, by a writing recorded in the court or the clerk’s office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1. The clerk shall record such election in the will book of the court. A copy of such election shall be provided to the personal representative, if any, by regular U.S. mail or hand delivery within 30 days of filing.
- The surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent’s non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent’s death.
- Notwithstanding the provisions of § 8.01-380 , the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court and such election shall be extinguished.
- After notice and hearing, the court shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10 and 64.2-308.11 . If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10 and 64.2-308.11 had relief been secured against all persons subject to contribution.
- An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
History. 2016, cc. 187, 269.
Editor’s note.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “Chapter 6 (§ 55.1-600 et seq.) of Title 55.1” for “Chapter 6 (§ 55-106 et seq.) of Title 55.”
Research References.
Virginia Forms (Matthew Bender). No. 5-1104 Complaint for an Accounting Following Election Under Augmented Estate; No. 15-447 Claim for Elective Share of Augmented Estate.
CIRCUIT COURT OPINIONS
Abandonment not shown. —
Wife was not barred from any interest in the husband’s estate, as her conduct did not evidence an intent to abandon the marital relationship; although the frequency of her visits to the husband may have varied after she moved out of their granddaughter’s home, the wife continued to visit the husband until his death, they maintained a joint banking account until then, and the wife and her neighbor did not have an extramarital relationship but were merely good friends. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).
§ 64.2-308.13. Right of election personal to surviving spouse; incapacitated surviving spouse.
- The right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court under subsection A of § 64.2-308.12 . If the election is not made by the surviving spouse personally, it may be made on the surviving spouse’s behalf by his or her conservator or agent under the authority of a durable power of attorney.
-
If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due from the
decedent’s probate estate and recipients of the decedent’s non-probate transfers to others under subsections C and D of §
64.2-308.10
and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable
power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate:
- Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.
- During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
- Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under Chapter 2 (§ 64.2-200 et seq.).
- The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2.
History. 2016, cc. 187, 269.
CIRCUIT COURT OPINIONS
Incapacity not shown. —
Wife was not an incapacitated person and the appointment of a trustee under the statute was not necessary; while the wife had vision and hearing difficulties, her testimony was lucid, she understood the nature of the proceedings, and she recognized family members and was able to recall specific past events. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).
§ 64.2-308.14. Waiver of right to elect and of other rights; defenses.
- The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
-
A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:
- The waiver was not executed voluntarily; or
-
The waiver was unconscionable when it was executed and before execution of the waiver because:
- A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;
- Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and
- The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
- An issue of unconscionability of a waiver is for decision by the court as a matter of law.
- Unless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
- If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.
History. 2016, cc. 187, 269.
CIRCUIT COURT OPINIONS
Appointment of trustee. —
Wife was not an incapacitated person and the appointment of a trustee under the statute was not necessary; while the wife had vision and hearing difficulties, her testimony was lucid, she understood the nature of the proceedings, and she recognized family members and was able to recall specific past events. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).
Abandonment not shown. —
Wife was not barred from any interest in the husband’s estate, as her conduct did not evidence an intent to abandon the marital relationship; although the frequency of her visits to the husband may have varied after she moved out of their granddaughter’s home, the wife continued to visit the husband until his death, they maintained a joint banking account until then, and the wife and her neighbor did not have an extramarital relationship but were merely good friends. Thompson v. Thompson, 103 Va. Cir. 170, 2019 Va. Cir. LEXIS 461 (Nelson County Sept. 30, 2019).
Waiver. —
Wife waived her right to claim an elective share because the prenuptial agreement specifically stated that each party waived any and all rights of every kind, nature, and description as spouse or surviving spouse; the wife’s motion for an extension of time to file for the elective share was denied on the grounds that she waived her claim, pursuant to the terms and conditions of the prenuptial agreement. Algabi v. Dagvadorj, 106 Va. Cir. 153, 2020 Va. Cir. LEXIS 193 (Loudoun County Oct. 19, 2020).
§ 64.2-308.15. Protection of payors and other third parties.
- Although under § 64.2-308.6 a payment, item of property, or other benefit is included in the decedent’s non-probate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent’s death, before the payor or other third party received written notice from the surviving spouse or spouse’s representative as required by § 64.2-308.12 , that a complaint for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice that a complaint for the elective share has been filed.
- A written notice that a complaint for the elective share has been filed must be mailed to the payor’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice that a complaint for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate. The court shall hold the funds or item of property, and, upon its determination under subsection D of § 64.2-308.12 , shall order disbursement in accordance with the determination. If no complaint is filed in the court within the specified time under subsection A of § 64.2-308.12 or, if filed, the election for an elective share is withdrawn under subsection C of § 64.2-308.12, the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.
- Upon complaint to the probate court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this article.
History. 2016, cc. 187, 269.
§ 64.2-308.16. Rights in family residence.
Until the surviving spouse’s rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent’s augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.
History. 2016, cc. 187, 269.
§ 64.2-308.17. Statutory rights barred by desertion or abandonment.
If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child’s estate by intestate succession.
History. 2016, cc. 187, 269.
Article 2. Exempt Property and Allowances.
§ 64.2-309. Family allowance.
- In addition to any other right or allowance under this article, upon the death of a decedent who was domiciled in the Commonwealth, the surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance shall not continue for longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance may be paid as a lump sum not to exceed $24,000, or in periodic installments not to exceed $2,000 per month for one year. It is payable to the surviving spouse for the use of the surviving spouse and minor children or, if there is no surviving spouse, to the person having the care and custody of the minor children. If any minor child is not living with the surviving spouse, the family allowance may be made partially to the spouse and partially to the person having the care and custody of the child, as their needs may appear. If there are no minor children, the allowance is payable to the surviving spouse.
- The family allowance has priority over all claims against the estate.
- The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.
- The death of any person entitled to a family allowance terminates the person’s right to any allowance not yet paid.
History. 1981, c. 580, §§ 64.1-151.1, 64.1-151.4; 1987, c. 222; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532.
The 2014 amendments.
The 2014 amendment by c. 532, in subsection A, substituted “$24,000” for “$18,000” and “$2,000” for “$1,500.”
Law Review.
For article, “Support of the Surviving Spouse and Minor Children in Virginia: Proposed Legislation v. Present Law,” see 14 U. Rich. L. Rev. 639 (1980).
For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982).
For article, “How Bankruptcy Exemptions Work: Virginia As an Illustration of Why the ‘Opt Out’ Clause Was a Bad Idea,” see 8 G.M.U. L. Rev. 1 (1985).
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.04 The Augmented Estate, et seq. Cox.
Virginia Forms (Matthew Bender). No. 5-823 General Creditor’s Complaint Against Estate of Decedent; No. 14-101 Antenuptial Agreement; No. 15-401 Checklist for Probate and Administration, et seq.
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Exemptions from Execution and Attachment, §§ 7, 12.
CIRCUIT COURT OPINIONS
Editor’s note. —
The cases below were decided under former Title 64.1 and prior law.
Priority of payment. —
Estate and a surety company were ordered to pay claims by the wife of a decedent under §§ 64.1-151.1 and 64.1-151.2, as the executor breached her duties by paying claims against the estate other than death taxes and administrative costs prior to paying the wife’s claims, as the wife’s claims had priority under § 64.1-157. Hill v. Clarke, 71 Va. Cir. 377, 2006 Va. Cir. LEXIS 260 (Hopewell Aug. 16, 2006).
No waiver of allowance. —
Widow had not waived her claims to the family allowance and exempt property by signing a premarital agreement. The agreement limited the widow’s waiver to separate property and thus did not prevent her from claiming her statutory rights to marital property. Davenport v. Walters, 69 Va. Cir. 334, 2005 Va. Cir. LEXIS 332 (Norfolk Nov. 30, 2005).
Executor’s compliance with § 64.1-151.5 supported motion to affirm validity of election. —
Elections affirmed because: (1) an executor, who was also the decedent’s surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate’s executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007).
Assets considered. —
Non-probate assets flowing to a spouse and the spouse’s independent sources of income were properly considered in denying the spouse’s request for a family allowance above $18,000 under § 64.1-151.1.Estate of Spears v. Spears, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008).
§ 64.2-310. Exempt property.
- In addition to any other right or allowance under this article, the surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $20,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value. If the value of the exempt property selected in excess of any security interests therein is less than $20,000, or if there is not $20,000 worth of exempt property in the estate, the spouse or minor children are entitled to other assets of the estate, if any, to the extent necessary to make up the $20,000 value.
- The right to exempt property and other assets of the estate needed to make up a deficiency of exempt property has priority over all claims against the estate, except the family allowance.
- The right to exempt property is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.
History. 1981, c. 580, § 64.1-151.2; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532.
The 2014 amendments.
The 2014 amendment by c. 532, in subsection A, substituted “$20,000” for “$15,000” throughout the subsection.
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 24 Rights of Creditors. § 24.17 Priority Family Claims in Virginia. Cox.
Virginia Forms (Matthew Bender). No. 5-823 General Creditor’s Complaint Against Estate of Decedent; No. 14-101 Antenuptial Agreement; No. 15-401 Checklist for Probate and Administration, et seq.
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Exemptions from Execution and Attachment, §§ 7, 12, 21.
CIRCUIT COURT OPINIONS
Editor’s note. —
The cases below were decided under former Title 64.1 and prior law.
Statutory allowances. —
Despite the lack of personal representative, § 6.1-125.8 [now see § 6.2-611 ] provided that the funds in a joint bank account could be used to satisfy a widow’s allowance under § 64.1-151.2 when the assets of the estate were otherwise insufficient. Bray v. Ireland, 69 Va. Cir. 270, 2005 Va. Cir. LEXIS 333 (Norfolk Nov. 7, 2005).
Priority of payment. —
Estate and a surety company were ordered to pay claims by the wife of a decedent under §§ 64.1-151.1 and 64.1-151.2, as the executor breached her duties by paying claims against the estate other than death taxes and administrative costs prior to paying the wife’s claims, as the wife’s claims had priority under § 64.1-157. Hill v. Clarke, 71 Va. Cir. 377, 2006 Va. Cir. LEXIS 260 (Hopewell Aug. 16, 2006).
No waiver of exempt property. —
Widow had not waived her claims to the family allowance and exempt property by signing a premarital agreement. The agreement limited the widow’s waiver to separate property and thus did not prevent her from claiming her statutory rights to marital property. Davenport v. Walters, 69 Va. Cir. 334, 2005 Va. Cir. LEXIS 332 (Norfolk Nov. 30, 2005).
Elections affirmed. —
Elections affirmed because: (1) an executor, who was also the decedent’s surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate’s executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007).
CASE NOTES
Widow was permitted to make the elections for homestead and personal property allowances because she had not abandoned her husband; a separation was for a relatively short time, there were telephone conversations about the wife returning, and there were attempts made to visit the husband in a nursing home. The widow rejected a suggestion that she consider a divorce and expressed love for her husband. Phillips v. Good, 94 Va. Cir. 504, 2016 Va. Cir. LEXIS 221 (Shenandoah County Nov. 22, 2016).
§ 64.2-311. Homestead allowance.
- In addition to any other right or allowance under this article, a surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $20,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children.
- The homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property.
- The homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent’s will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent’s will or by intestate succession is less than $20,000, then the surviving spouse or minor children are entitled to a homestead allowance in an amount that when added to the property passing to the surviving spouse and minor children by the decedent’s will or by intestate succession, equals the sum of $20,000.
- If the surviving spouse claims and receives an elective share of the decedent’s estate under §§ 64.2-302 through 64.2-307 , the surviving spouse shall not have the benefit of any homestead allowance. If the surviving spouse claims and receives an elective share of the decedent’s estate under Article 1.1 (§ 64.2-308.1 et seq.), the homestead allowance shall be in addition to any benefit or share passing to the surviving spouse by way of elective share.
History. 1981, c. 580, § 64.1-151.3; 1990, c. 831; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2016, cc. 187, 269; 2017, cc. 32, 82.
Editor’s note.
Acts 2017, cc. 32 and 82, cl. 2 provides: “That the provisions of this act apply to the elective share of a surviving spouse of a decedent dying on or after January 1, 2017.”
The 2014 amendments.
The 2014 amendment by c. 532 substituted “$20,000” for “$15,000” throughout the section.
The 2016 amendments.
The 2016 amendments by cc. 187 and 269 are identical, and inserted “or Article 1.1 (§ 64.2-308.1 et seq.), as applicable” in subsection D.
The 2017 amendments.
The 2017 amendments by c. 32, effective February 17, 2017, and c. 82, effective February 20, 2017, are identical, and in subsection D, deleted “or Article 1.1 (§ 64.2-308.1 et seq.), as applicable” following “§§ 64.2-302 through 64.2-307 ” and added the last sentence. For applicability, see Editor’s note.
Law Review.
For article, “How Bankruptcy Exemptions Work: Virginia As an Illustration of Why the ‘Opt Out’ Clause Was a Bad Idea,” see 8 G.M.U. L. Rev. 1 (1985).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.02 In Virginia — Comparison of Elective Share Statutes, et seq. Cox.
Virginia Forms (Matthew Bender). No. 5-823 General Creditor’s Complaint Against Estate of Decedent; No. 14-101 Antenuptial Agreement; No. 15-401 Checklist for Probate and Administration, et seq.
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Exemptions from Execution and Attachment, §§ 7, 8, 12.
CASE NOTES
Deceased spouse’s failure to exercise exemption rights. —
Debtor was not entitled to an additional $5,000 (now $15,000) homestead exemption under this section resulting from his deceased wife’s failure to exercise her homestead exemption rights. Ames v. Custis, 87 Bankr. 415, 1988 Bankr. LEXIS 1080 (Bankr. E.D. Va. 1988) (decided under prior law).
Spouse or minor may not exercise decedent’s exemption. —
This section does not grant a surviving spouse or minor children the right to exercise for their own benefit a decedent’s homestead exemption. Ames v. Custis, 87 Bankr. 415, 1988 Bankr. LEXIS 1080 (Bankr. E.D. Va. 1988) (decided under prior law).
CIRCUIT COURT OPINIONS
Elections affirmed. —
Elections affirmed because: (1) an executor, who was also the decedent’s surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate’s executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007) (decided under prior law).
CASE NOTES
Widow was permitted to make the elections for homestead and personal property allowances because she had not abandoned her husband; a separation was for a relatively short time, there were telephone conversations about the wife returning, and there were attempts made to visit the husband in a nursing home. The widow rejected a suggestion that she consider a divorce and expressed love for her husband. Phillips v. Good, 94 Va. Cir. 504, 2016 Va. Cir. LEXIS 221 (Shenandoah County Nov. 22, 2016).
§ 64.2-312. Source, determination, and documentation of family allowance, exempt property, and homestead allowance; petition for relief.
- Property specifically bequeathed or devised shall not be used to satisfy the right to exempt property and the homestead allowance if there are sufficient assets in the estate otherwise to satisfy such rights. Subject to this restriction, the surviving spouse or the guardian of the minor children may select property of the estate as exempt property and the homestead allowance. The personal representative may make these selections if the surviving spouse or the guardian of the minor children is unable or fails to do so within a reasonable time, or if there is no guardian of the minor children. The personal representative may execute a deed of distribution to establish the ownership of property taken as the homestead allowance or exempt property, which deed, if executed, shall (i) describe the property with reasonable certainty and (ii) state the value of each asset included therein. The personal representative may determine the family allowance in a lump sum or periodic installments in accordance with § 64.2-309 . The personal representative may disburse funds of the estate in payment of the family allowance and in payment of any part of the exempt property or the homestead allowance that is payable in cash.
- The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the circuit court for appropriate relief, including the award of a family allowance that is larger or smaller than what the personal representative determined or could have determined. Such petition may be ex parte; provided, however, that the court in its discretion may require such notice to and the convening of interested parties as it may deem proper in each case.
History. 1981, c. 580, § 64.1-151.4; 1996, c. 549; 2001, c. 368; 2012, c. 614.
Research References.
Virginia Forms (Matthew Bender). No. 14-101 Antenuptial Agreement; No. 15-448 Claim for Family Allowance, Exempt Property, and Homestead Allowance.
§ 64.2-313. When and how exempt property and allowances may be claimed.
Any election to take a family allowance, exempt property, or a homestead allowance shall be made within one year from the decedent’s death. The election shall be made either in person before the court having jurisdiction over probate or administration of the decedent’s estate, or by a writing recorded in the court, or the clerk’s office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1.
History. 1981, c. 580, § 64.1-151.5; 2012, c. 614.
Editor’s note.
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “Chapter 6 (§ 55.1-600 et seq.) of Title 55.1” for “Chapter 6 (§ 55-106 et seq.) of Title 55.”
Law Review.
For annual survey article, see “Wills, Trusts, and Estates,” 48 U. Rich. L. Rev. 189 (2013).
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Exemptions from Execution and Attachment, § 7.
CIRCUIT COURT OPINIONS
Executor’s compliance with § 64.1-151.5 supported motion to affirm validity of election. —
Elections affirmed because: (1) an executor, who was also the decedent’s surviving spouse, complied with § 64.1-151.5 regarding her intent to claim the allowances enumerated thereunder; (2) a claim that she failed to make the election in her capacity as the surviving spouse, but as the estate’s executor, lacked merit; and (3) the court disagreed that the language in the deed in which the executor recorded said intent was precatory. In re Wisemiller, 2007 Va. Cir. LEXIS 192 (Fairfax County Nov. 19, 2007) (decided under prior law).
Equities allowed election. —
As the language of § 64.1-151.5 was ambiguous as to notarization requirements, the court could consider a widow’s equitable arguments, which weighed in favor of recognizing her elections. Both the executor and the court were on notice of the widow’s intent to claim her allowances two months after the testator’s death, and no party would be prejudiced by allowing her to claim them. Davenport v. Walters, 69 Va. Cir. 334, 2005 Va. Cir. LEXIS 332 (Norfolk Nov. 30, 2005) (decided under prior law).
§ 64.2-314. Waiver.
- The right of a decedent’s surviving spouse to a homestead allowance in the estate of a decedent as provided in § 64.2-311 may be waived during the decedent’s lifetime only by execution of a marital or premarital agreement in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20 or by execution of a waiver provided (i) the waiver is in writing, (ii) the language of the waiver mentions homestead allowance in conspicuous language, and (iii) the waiver has been signed by the surviving spouse.
- The right to the family allowance and exempt property, as provided in §§ 64.2-309 and 64.2-310 , may be waived during the decedent’s lifetime only by execution of a marital or premarital agreement made in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20.
History. 1990, c. 831, § 64.1-151.6; 2012, c. 614.
CASE NOTES
Surviving spouse’s rights. —
Trial court did not err in finding that the separate property of the late wife, which she agreed was part of the prenuptial agreement and which was identified in appendices to the agreement, was not part of the husband’s elective share, as, pursuant to § 20-150 , parties could contract to exclude such property from the disposition of property upon the happening of an event, such as the death of a spouse, which is what the late wife did. Dowling v. Rowan, 270 Va. 510 , 621 S.E.2d 397, 2005 Va. LEXIS 97 (2005) (decided under prior law).
Article 3. Uniform Disposition of Community Property Rights at Death Act.
§ 64.2-315. Application.
This article applies to the disposition at death of the following property acquired by a married person:
-
All personal property, wherever situated:
- Which was acquired as or became, and remained, community property under the laws of another jurisdiction;
- Which, all or the proportionate part of that property, was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or
- Which is traceable to that community property;
- All or the proportionate part of any real property situated in the Commonwealth which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as, or which became and remained, community property under the laws of another jurisdiction, or property traceable to that community property.
History. 1982, c. 456, § 64.1-197; 2012, c. 614.
Uniform law cross references.
For other signatory state provisions, see:
Alaska: Alaska Stat. §§ 13.41.005 to 13.41.055.
Arkansas: A.C.A. §§ 28-12-101 to 28-12-113.
Colorado: C.R.S. §§ 15-20-101 to 15-20-111.
Connecticut: Conn. Gen. Stat. §§ 45a-458 to 45a-466.
Florida: Fla. Stat. §§ 732.216 to 732.228.
Hawaii: H.R.S. §§ 510-21 to 510-30.
Kentucky: K.R.S. §§ 391.210 to 391.260.
Michigan: M.C.L.S. §§ 557.261 to 557.271.
Montana: Mont. Code Anno. §§ 72-9-101 to 72-9-120.
New York: NY CLS EPTL §§ 6-6.1 to 6-6.7.
North Carolina: N.C. Gen. Stat. §§ 31C-1 to 31C-12.
Oregon: O.R.S. §§ 122.705 to 112.775.
§ 64.2-316. Presumptions.
In determining whether this article applies to specific property, the following rebuttable presumptions apply:
- Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as, or to have become and remained, property to which this article applies; and
- Real property situated in the Commonwealth and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which this article applies.
History. 1982, c. 456, § 64.1-198; 2012, c. 614.
§ 64.2-317. Disposition upon death.
Upon death of a married person, one-half of the property to which this article applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of intestate succession of the Commonwealth. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of intestate succession of the Commonwealth. With respect to property to which this article applies, the decedent’s one-half of the property is not subject to the surviving spouse’s right to an elective share under § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.), as applicable.
History. 1982, c. 456, § 64.1-199; 1990, c. 831; 2012, c. 614; 2016, cc. 187, 269.
The 2016 amendments.
The 2016 amendments by cc. 187 and 269 are identical, and added “or Article 1.1 (§ 64.2-308.1 et seq.), as applicable” at the end.
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 2A The Elective Share. § 2A.02 In Virginia — Comparison of Elective Share Statutes. Cox.
Virginia Forms (Matthew Bender). No. 15-447 Claim for Elective Share of Augmented Estate.
§ 64.2-318. Perfection of title of surviving spouse.
If the title to any property to which this article applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the commissioner of accounts. Neither the personal representative nor the court in which the decedent’s estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which this article applies, unless a written demand is made by the surviving spouse or the spouse’s successor in interest.
History. 1982, c. 456, § 64.1-200; 2012, c. 614.
§ 64.2-319. Perfection of title of personal representative, heir or devisee.
If the title to any property to which this article applies is held by the surviving spouse at the time of the decedent’s death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this article applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.
History. 1982, c. 456, § 64.1-201; 2012, c. 614.
§ 64.2-320. Purchaser for value or lender.
- If a surviving spouse has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.
- If a personal representative or an heir or devisee of the decedent has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse.
- A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.
- The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.
History. 1982, c. 456, § 64.1-202; 2012, c. 614.
§ 64.2-321. Creditor’s rights.
This article does not affect rights of creditors with respect to property to which this article applies.
History. 1982, c. 456, § 64.1-203; 2012, c. 614.
§ 64.2-322. Acts of married persons.
The provisions of this article do not prevent married persons from severing or altering their interests in property to which this article applies.
History. 1982, c. 456, § 64.1-204; 2012, c. 614.
§ 64.2-323. Limitations on testamentary disposition.
This article does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.
History. 1982, c. 456, § 64.1-205; 2012, c. 614.
§ 64.2-324. Uniformity of application and construction.
This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.
History. 1982, c. 456, § 64.1-206; 2012, c. 614.
Chapter 4. Wills.
Article 1. Requisites and Execution.
§ 64.2-400. Separate writing identifying recipients of tangible personal property; liability for distribution; action to recover property.
- If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.
- The written statement or list may be (i) referred to as one that is in existence at the time of the testator’s death, (ii) prepared before or after the execution of the will, (iii) altered by the testator at any time, and (iv) a writing that has no significance apart from its effect on the dispositions made by the will. When distribution is made pursuant to such a written statement or list, a copy thereof shall be furnished to the commissioner of accounts along with the legatee’s receipt.
- A personal representative shall not be liable for any distribution of tangible personal property to the apparent legatee under the testator’s will made without actual knowledge of the existence of a written statement or list, nor shall he have any duty to recover property so distributed. However, a person named to receive certain tangible personal property in a written statement or list that is effective under this section may recover that property, or its value if the property cannot be recovered, from an apparent legatee to whom it has been distributed in an action brought for that purpose within one year after the probate of the testator’s will.
- This section shall not apply to a writing admitted to probate as a will and, except as provided herein, shall not otherwise affect the law of incorporation by reference.
History. 1995, c. 363, § 64.1-45.1; 2012, c. 614.
Law Review.
For 1995 survey of wills, trusts, and estates, see 29 U. Rich. L. Rev. 1175 (1995).
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
Research References.
Virginia Forms (Matthew Bender). No. 15-101 Checklist for Will Interview, et seq.; No. 15-201 Preamble to Will, et seq; No. 15-301 Revocable Inter Vivos Trust Agreement, et seq.; No. 15-401 Checklist for Probate and Administration.
§ 64.2-401. Who may make a will; what estate may be disposed of.
- Except as provided in subsection B, any individual may make a will to dispose of all or part of his estate at his death that, if not disposed of, would otherwise pass by intestate succession, including any estate, right, or interest that the testator may subsequently become entitled to after the execution of the will.
- An individual is not capable of making a will if he is (i) of unsound mind or (ii) an unemancipated minor.
History. Code 1950, §§ 64-48, 64-49; 1968, c. 656, §§ 64.1-46, 64.1-47; 1972, c. 825; 2000, c. 161; 2012, c. 614.
Law Review.
For comment on contemporary legal aspects of surrogate mother agreements, see 16 U. Rich. L. Rev. 467 (1982).
For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).
CASE NOTES
Editor’s note.
The cases annotated below were decided under former Title 64.1 and prior law.
The right to make a will of chattels is a common-law right. McDaniel v. Guthrie, 16 Va. L. Reg. 659 (1911).
A blind person may make will. —
A blind person is, so far as such disability is concerned, perfectly competent to make a will. Boyd v. Cook, 30 Va. (3 Leigh) 32, 1831 Va. LEXIS 33 (1831) (see also Neil v. Neil, 28 Va. (1 Leigh) 6 (1829)).
After-acquired property is devisable. —
Under the present statutes, any estate, right or interest is devisable to which the testator may be entitled subsequently to the execution of the will, a will being declared by statute, with reference to the real as well as the personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Randolph v. Wright, 81 Va. 608 , 1886 Va. LEXIS 128 (1886).
A wife to whom a husband gives property by will may by that will be authorized to make a valid will disposing of it in his lifetime. And such will is presumed to have been made under that power. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21, 1872 Va. LEXIS 2 (1872).
Right of entry or action. —
A right of entry or of action held devisable under our statutes. Taylor's Devisees v. Rightmire, 35 Va. (8 Leigh) 468, 1836 Va. LEXIS 77 (1836).
Under this section a possibility of reverter may now be disposed of by will before termination of the base or determinable fee. County School Bd. v. Dowell, 190 Va. 676 , 58 S.E.2d 38, 1950 Va. LEXIS 254 (1950).
Householder cannot dispose of articles enumerated in § 34-26 . —
Where a householder dies leaving a widow or infant children, such of these as there may be take an absolute title to the articles enumerated in § 34-26 , regardless of any provisions of the will of the householder. McDaniel v. Guthrie, 16 Va. L. Reg. 659 (1911).
Requisites of mental capacity. —
A testator, in making his will, must be capable of understanding the nature of the business he is engaged in, and the elements his will is composed of, and the disposition of his property thereby provided for, both as to the property and the persons he means to give it to, and how it is to be disposed of among them. Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 , 1888 Va. LEXIS 70 (1888); Huff v. Welch, 115 Va. 74 , 78 S.E. 573 , 1913 Va. LEXIS 11 (1913); Mercer v. Kelso's Adm'r, 45 Va. (4 Gratt.) 106, 1847 Va. LEXIS 30 (1847) (see also Greer v. Greer, 50 Va. (9 Gratt.) 330 (1852); Whitesel v. Whitesel, 64 Va. (23 Gratt.) 904 (1873); Young v. Barner, 68 Va. (27 Gratt.) 96 (1876); Chappell v. Trent, 90 Va. 849 , 19 S.E. 314 (1893); Lester v. Simpkins, 117 Va. 55 , 83 S.E. 1062 (1915)).
The test applied in Virginia for mental capacity to execute a will emphasizes ability to know and do certain things. Thomason v. Carlton, 221 Va. 845 , 276 S.E.2d 171, 1981 Va. LEXIS 219 (1981).
For testamentary capacity to exist, it is sufficient that at the time the testator executed his will, he was capable of recollecting his property, the natural objects of his bounty, and their claims upon him, and knew the business about which he was engaged and how he wished to dispose of his property. Fields v. Fields, 255 Va. 546 , 499 S.E.2d 826, 1998 Va. LEXIS 60 (1998).
Law only requires testamentary capacity at time will is made. —
This is the controlling factor. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
The testimony of lay witnesses which indicate incapacity generally and not as evidence of incapacity on the date the will was executed, will not overthrow the testimony of the witnesses to the execution of the will where the latter evidence is clear as to the testator’s capacity at the time the will was executed. Fields v. Fields, 255 Va. 546 , 499 S.E.2d 826, 1998 Va. LEXIS 60 (1998).
A testator is not rendered incompetent to make a will merely because he may be incompetent to safely transact the general business affairs of life. Wooddy v. Taylor, 114 Va. 737 , 77 S.E. 498 , 1913 Va. LEXIS 138 (1913).
Subsequent determination of incompetency not determinative. —
Testamentary capacity must exist when the testatrix executes the will. A pending competency hearing or subsequent determination of incompetency does not determine whether testamentary capacity existed at the time the will was executed. Likewise, the appointment of a guardian cannot be regarded as prima facie evidence of mental incapacity. Gibbs v. Gibbs, 239 Va. 197 , 387 S.E.2d 499, 6 Va. Law Rep. 1164, 1990 Va. LEXIS 9 (1990).
Insanity. —
Mental capacity to execute a will may factually exist and be shown, even though the testator has been adjudged insane. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
Old age and eccentricity are not invalidating. Wood v. Wood, 109 Va. 470 , 63 S.E. 994 , 1909 Va. LEXIS 57 (1909); Howard v. Howard, 112 Va. 566 , 72 S.E. 133 , 1911 Va. LEXIS 120 (1911); Huff v. Welch, 115 Va. 74 , 78 S.E. 573 , 1913 Va. LEXIS 11 (1913).
Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid; thus, if at the time of its execution the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient. Thomason v. Carlton, 221 Va. 845 , 276 S.E.2d 171, 1981 Va. LEXIS 219 (1981).
Where an 88-year-old woman with physical ailments, but who was deemed to be mentally alert and competent, devised all of her property to her son to the exclusion of her daughter, her will was valid since the evidence overwhelmingly showed that she possessed testamentary capacity at the time she executed it. Thomason v. Carlton, 221 Va. 845 , 276 S.E.2d 171, 1981 Va. LEXIS 219 (1981).
Burden of proof requirements. —
In a case in which contestant challenged the authenticity of a will alleging testamentary capacity, the proponent of the will was entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for the valid execution of the will. Once the presumption exists, the contestant then bears the burden of going forward with evidence to overcome this presumption, although the burden of persuasion remains with the proponent. Gibbs v. Gibbs, 239 Va. 197 , 387 S.E.2d 499, 6 Va. Law Rep. 1164, 1990 Va. LEXIS 9 (1990).
Burden of proving capacity is on the propounder of the will. Nothing short of clear and convincing evidence will suffice. Riddell v. Johnson's Ex'r, 67 Va. (26 Gratt.) 152, 1875 Va. LEXIS 11 (1875); Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 , 1888 Va. LEXIS 70 (1888).
Burden of proof improperly placed. —
Instruction, which directed jury to find that the will in question was not the last will of the testatrix if the contestants proved by clear and convincing evidence that the testatrix did not possess the requisite testamentary capacity at the time the will was made, improperly placed the burden of proof on contestants to prove the testatrix’s incapacity by clear and convincing evidence. Gibbs v. Gibbs, 239 Va. 197 , 387 S.E.2d 499, 6 Va. Law Rep. 1164, 1990 Va. LEXIS 9 (1990).
Where will wholly in handwriting of testator. —
The circumstance that a writing exhibited for probate as a last will and testament was wholly written by the testator himself was prima facie evidence that he was in his senses and able to make a will, so that the burden of proof to repel that presumption lay on those who wished to impugn it. Temple v. Temple, 11 Va. (1 Hen. & M.) 476, 1807 Va. LEXIS 38 (1807) (see Mercer v. Kelso’s Adm’r, 45 Va. (4 Gratt.) 106 (1847); Beverley v. Walden, 61 Va. (20 Gratt.) 147 (1870)).
CIRCUIT COURT OPINIONS
Early Alzheimer’s or mild dementia insufficient to prove lack of capacity. —
Although the decedent was suffering from early Alzheimer’s or mild dementia at the time of the will execution, the decedent had the requisite testamentary capacity under § 64.1-47; the attorney’s testimony that the decedent wanted to increase the bequest to the son established that the decedent read the decedent’s will, understood the scope of the decedent’s property, the objects of the decedent’s bounty, and how the decedent wished to dispose of the property. Rudwick v. Lloyd, 69 Va. Cir. 139, 2005 Va. Cir. LEXIS 319 (Arlington County Oct. 13, 2005) (decided under prior law).
§ 64.2-402. Advertisements to draw wills prohibited; penalty.
Any person that advertises any direct or indirect offer to draw any will or have any will drawn is guilty of a Class 3 misdemeanor, provided that the provisions of this section shall not apply to a duly licensed attorney-at-law, partnership composed of duly licensed attorneys-at-law, or a professional corporation or professional limited liability company incorporated or organized for the practice of law so long as such attorney, partnership, or professional corporation conducts such advertisement in accordance with the Rules of Court promulgated by the Supreme Court of Virginia.
History. Code 1950, § 64-50; 1968, c. 656, § 64.1-48; 1979, c. 438; 1996, c. 265; 2012, c. 614.
§ 64.2-403. Execution of wills; requirements.
- No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator’s presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.
- A will wholly in the testator’s handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator’s handwriting and signed by the testator is proved by at least two disinterested witnesses.
- A will not wholly in the testator’s handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.
History. Code 1950, § 64-51; 1968, c. 656, § 64.1-49; 2012, c. 614.
Law Review.
For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).
for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974).
for the year 1979-1980, see 67 Va. L. Rev. 369 (1981).
For 2002 survey of Virginia law on wills, trusts, and estates, see 37 U. Rich. L. Rev. 357 (2002).
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).
CASE NOTES
Analysis
- I. General Consideration.
- II. Testamentary Intent and Knowledge of Contents of Will.
- III. Form and Contents.
-
IV. Execution.
- A. Signing and Sealing.
-
B. Witnesses to Signing or Acknowledgment.
- 1. Necessity.
- 2. Competency.
- 3. Request to Subscribe.
- 4. Acknowledgment as Dispensing With Signing in Presence of Witnesses.
- 5. Necessity for Witnesses to Be Present at Same Time.
- 6. Necessity for Witnesses to Sign in Presence of Testator.
- 7. Order of Signing.
- 8. Manner of Signing and Form of Attestation.
- C. Publication.
- V. Proof of Execution.
- VI. Holographic Wills.
I.General Consideration.
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
As to the history of certain statutory provisions relating to the execution of wills, see Selden v. Coalter, 4 Va. (2 Va. Cas.) 553 (1818); Waller v. Waller, 42 Va. (1 Gratt.) 454, 1845 Va. LEXIS 12 (1845); Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 , 1888 Va. LEXIS 88 (1888).
Purpose. —
The purpose of the statutory requirements with respect to the execution of wills was to throw every safeguard deemed necessary around a testator while in the performance of this important act, and to prevent the probate of a fraudulent and suppositious will instead of the real one. To accomplish this, the statute must be strictly followed. It is, however, quite as important that these statutory requirements should not be supplemented by the courts with others that might tend to increase the difficulty of the transaction to such an extent as practically to destroy the right of the uninformed layman to dispose of his property by will. Savage v. Bowen, 103 Va. 540 , 49 S.E. 668 , 1905 Va. LEXIS 24 (1905); French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
The ceremonies required were not intended to restrain or abridge the power of testators, but to guard and protect them in the exercise of that power. Moon v. Norvell, 184 Va. 842 , 36 S.E.2d 632, 1946 Va. LEXIS 147 (1946); Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950); French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
The purpose of this section is to prevent mistakes, imposition, fraud or deception. Moon v. Norvell, 184 Va. 842 , 36 S.E.2d 632, 1946 Va. LEXIS 147 (1946); Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950); French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
The purpose of the statute in requiring subscription of a will by competent witnesses in the presence of the testator is to prevent fraud, deception, mistake, and the substitution of a surreptitious document; however, these requirements are not intended to restrain or abridge the power of a testator to dispose of his property. They are intended to guard and protect him in the exercise of that power. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735, 6 Va. Law Rep. 971, 1990 Va. LEXIS 25 (1990).
The purpose of this statute is to prevent fraud, mistake, or the substitution of documents; it is not intended to place restraints on the power to execute a will but to guard and protect that power. Draper v. Pauley, 253 Va. 78 , 480 S.E.2d 495, 1997 Va. LEXIS 18 (1997).
Section must be complied with. —
The protective requirements of this section, designed to insure testamentary disposition of property against fraud and impositions, must be of general application, and must be proven to have been complied with. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934).
The provisions of this section must be complied with in order that a will may be valid. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881, 1940 Va. LEXIS 165 (1940).
While this section must be strictly followed, it is vital that the provisions not be construed in a manner which would “increase the difficulty of the transaction to such an extent as to practically destroy” the right of the uninformed lay person to dispose of property by will; the statute should be given “a sound and fair construction” with rigid insistence “upon substantial compliance with its requirements.” Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735, 6 Va. Law Rep. 971, 1990 Va. LEXIS 25 (1990).
The safeguards of this section are not designed to make the execution of wills a mere trap and pitfall, and their probate a mere game. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735, 6 Va. Law Rep. 971, 1990 Va. LEXIS 25 (1990).
This section and § 64.1-45 require the same formalities in the execution of a codicil as in the execution of the will itself. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
Invalidity of a codicil does not affect the validity of a will which has been executed in the manner prescribed by this section. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
Joint wills are valid. Williams v. Williams, 123 Va. 643 , 96 S.E. 749 , 1918 Va. LEXIS 56 (1918).
Section not applicable to bank deposit payable to survivor. —
This section does not apply to a bank deposit made in the name of a depositor payable on death to a named survivor. Use of accounts payable on death to a survivor is a valid method of transferring property upon death, irrespective of the provisions of this section. Virginia Nat'l Bank v. Harris, 220 Va. 336 , 257 S.E.2d 867, 1979 Va. LEXIS 269 (1979).
II.Testamentary Intent and Knowledge of Contents of Will.
Testamentary intent is essential to the validity of a will, and the mere fact of the formal signature and acknowledgment of an instrument, though strictly in accord with the requirements of the statute of wills, is not conclusive upon this question of testamentary intent. One may execute a paper with every formality known to the law, but unless he intends that very paper to take effect as a will, it is no will. Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 , 1921 Va. LEXIS 144 (1921) (see also Waller v. Waller, 42 Va. (1 Gratt.) 454, 1845 Va. LEXIS 12 (1845); Hocker v. Hocker, 45 Va. (4 Gratt.) 277, 1848 Va. LEXIS 5 (1848); Early v. Arnold, 119 Va. 500 , 89 S.E. 900 , 1916 Va. LEXIS 124 (1916).
Although the testator had signed will before the document contained the disposition of her property, there was no dispute that the signature was hers, and that following the transcription of the statement and its recitation back to her, testator stated that the document was exactly what she wanted. Under these circumstances, the signature was “intended as a signature” and the “will acknowledged” by the testator in the presence of two competent witnesses in satisfaction of the requirements for a valid will contained in this section. Draper v. Pauley, 253 Va. 78 , 480 S.E.2d 495, 1997 Va. LEXIS 18 (1997).
See, however,.Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 (1922), where it is said that it is not necessary that a testator should intend to perform, or be aware that he has performed, a testamentary act .
Requirement of testamentary intent applies to wills and codicils. —
The requirement of testamentary intent which applies to a will extends with like force and effect to a codicil. Delly v. Seaboard Citizens Nat'l Bank, 202 Va. 764 , 120 S.E.2d 457, 1961 Va. LEXIS 176 (1961).
Intention to make and sign will must be concurrent. —
There must be a concurrence of the animus testandi and the animus signandi — that is, the intention to make a will and the intention to sign the instrument as and for a will. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729, 1945 Va. LEXIS 192 (1945).
Testamentary intent must appear from face of paper. —
It is elementary that to constitute a valid will a paper offered for probate must have been designed or intended to operate as a disposition of the testator’s property to take effect after his death. In this jurisdiction such testamentary intent must appear from the face of the paper itself. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968).
Testamentary capacity. —
Trial court erred in ruling that a testator lacked testamentary capacity when executing a contested will as the evidence did not support such a finding. The trial court erred in placing more weight on the testimony of the testator’s doctor and her children who were not present when she executed the will than it did on the testimony of the witnesses, the notary, and the will proponent who were present when the will was executed; there was no testimony that the testator was not lucid at the time that she executed the contested will. Weedon v. Weedon, 283 Va. 241 , 720 S.E.2d 552, 2012 Va. LEXIS 7 (2012).
A paper not intended to be a will, but which contains a disposition of property to take effect after death, may operate as a testamentary act. McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875); Henderson v. Henderson, 183 Va. 663 , 33 S.E.2d 181 (1945), in which a letter was held to be testamentary in character and was admitted to probate as a codicil .
A letter can constitute a will. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136, 1974 Va. LEXIS 180 (1974).
But it must satisfactorily appear that the letter writer intended the very paper to be his will. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136, 1974 Va. LEXIS 180 (1974).
Testamentary intent must be found on face of letter. —
For a letter to be a valid will in Virginia, testamentary intent must be found on its face, not for extrinsic evidence. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136, 1974 Va. LEXIS 180 (1974).
Letter held not testamentary in character. —
Letter, which on its face merely informed defendant that in another document the decedent had devised property to him, was merely a communicative letter. It does not appear that the decedent intended the letter itself to make a disposition of his property after his death. Thus, it was not testamentary in character and could not be probated as a will. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136, 1974 Va. LEXIS 180 (1974).
Creation of joint bank account with survivorship not testamentary instrument. —
The creation of a joint bank account by one person for himself and another, as joint owners, with the right of survivorship, is not a testamentary instrument. Quesenberry v. Funk, 203 Va. 619 , 125 S.E.2d 869, 1962 Va. LEXIS 195 (1962).
Jury must be satisfied that the testator knew of the contents of the will at the time of its execution. Montague v. Allan, 78 Va. 592 , 1884 Va. LEXIS 33 (1884) (see also Tucker v. Calvert, 10 Va. (6 Call) 90 (1806); Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831)).
Testamentary intent lacking. —
An instrument, referred to as a codicil, which made no disposition of property and did not modify any former will in any respect did not evidence sufficient testamentary intent to be admitted to probate. Delly v. Seaboard Citizens Nat'l Bank, 202 Va. 764 , 120 S.E.2d 457, 1961 Va. LEXIS 176 (1961).
Evidence of intention. —
See Smith v. Smith, 112 Va. 205 , 70 S.E. 491 , 1911 Va. LEXIS 72 (1911).
III.Form and Contents.
Whole will must be in writing. —
Each and every part of the last will and testament of a decedent must be in writing, and be executed in the mode prescribed by this section, and if any part is in parol, such part is void and inoperative, in the absence of fraud. Sims v. Sims, 94 Va. 580 , 27 S.E. 436 , 1897 Va. LEXIS 110 (1897) (see also Sprinkle v. Hayworth, 67 Va. (26 Gratt.) 384 (1875), where a parol will is said to be forbidden, whether in form of a trust or otherwise, quoted with approval in Sims v. Sims, 94 Va. 580 , 27 S.E. 436 (1897)).
Except as provided in § 64.1-53. —
Each and every part of a will, except in the cases provided for in § 64.1-53, must be in writing, and if any part is in parol that part is void and inoperative under this section. Rinker v. Simpson, 159 Va. 612 , 166 S.E. 546 , 1932 Va. LEXIS 220 (1932).
Or where enforcement of parol provision is necessary to prevent fraud. —
An exception is recognized where the bequest or devise has been procured by a promise to hold for benefit of another, which promisor refuses to perform. The exception is allowed to prevent a fraud. Sims v. Sims, 94 Va. 580 , 27 S.E. 436 , 1897 Va. LEXIS 110 (1897).
Will may consist of several testamentary papers, of different dates, and executed and attested in different ways and at different times. Schultz v. Schultz, 51 Va. (10 Gratt.) 358, 1853 Va. LEXIS 57 (1853); Gordon v. Whitlock, 92 Va. 723 , 24 S.E. 342 , 1896 Va. LEXIS 35 (1896); Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609, 1953 Va. LEXIS 148 (1953).
Incorporation of paper by reference. —
There are three requisites in order that an extrinsic paper may be incorporated into a will by reference. Incorporation must be made of a paper in actual existence at the date of the execution of the will; it must appear from the face of the will that the paper is in actual existence at that time; and the paper must be identified and described with reasonable certainty in the will. Selden v. Coalter, 4 Va. (2 Va. Cas.) 553 (1818); Pollock v. Glassell, 43 Va. (2 Gratt.) 439, 1846 Va. LEXIS 7 (1846); Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934); Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820, 1961 Va. LEXIS 150 (1961).
Interlineations and erasures must be made before will executed. —
When a will is presented for probate and discloses interlineations and erasures, it is obvious that if they were made before the will was executed, they form a part of it, and the document, as so changed and altered, is the one which should be received; while if they were made after execution they form no part of the will and are of no effect whatever, unless they sufficiently support an inference of cancellation. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934).
Erasure of name of legatee, leaving it still legible, after execution, is no cancellation, and no presumption arises that the decedent did it himself. Harris v. Wyatt, 113 Va. 254 , 74 S.E. 189 , 1912 Va. LEXIS 31 (1912).
To be a will, an instrument must dispose of property, not merely negative its going to certain persons. Boisseau v. Aldridges, 32 Va. (5 Leigh) 222, 1834 Va. LEXIS 34 (1834); Coffman v. Coffman, 85 Va. 459 , 8 S.E. 672 , 1888 Va. LEXIS 56 (1888).
No particular language is necessary to constitute a valid will. Early v. Arnold, 119 Va. 500 , 89 S.E. 900 , 1916 Va. LEXIS 124 (1916).
A testamentary form is not essential. McBride v. McBride, 67 Va. (26 Gratt.) 476, 1875 Va. LEXIS 32 (1875); Cody v. Conly, 68 Va. (27 Gratt.) 313, 1876 Va. LEXIS 26 (1876).
There is nothing that requires less formality than the body of a will or testament. If it is duly signed, attested and published, it may assume almost any form, provided it was intended by the party to take effect after his death. The form of a paper does not affect its title to probate, provided it be the intention of the deceased that it should operate after his death. The true question is whether the deceased has done a testamentary act; and that involves not merely the terms, but also the perfect and appropriate execution, of the instrument; and the latter is the proper subject of parol evidence. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
But testator must have intended very paper to be his will. —
A paper is not to be established as a man’s will, merely by proving, that he intended to make a disposition of his property similar to, or even identically the same with, that contained in the paper. It must satisfactorily appear that he intended the very paper to be his will. Sharp v. Sharp, 29 Va. (2 Leigh) 249, 1830 Va. LEXIS 32 (1830); Waller v. Waller, 42 Va. (1 Gratt.) 454, 1845 Va. LEXIS 12 (1845) (see Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Hocker v. Hocker, 45 Va. (4 Gratt.) 277 (1848); McBride v. McBride, 67 Va. (26 Gratt.) 476 (1875)).
There is one exception to this rule. When the draft or notes of a will embody the provisions actually designed by the testator with reference to his property, and declare the settled purpose of the testator, they will be established as his will. McBride v. McBride, 67 Va. (26 Gratt.) 476, 1875 Va. LEXIS 32 (1875).
For memorandum established as will, see Sharp v. Sharp, 29 Va. (2 Leigh) 249 (1830). For memoranda held not to be testamentary, see Hocker v. Hocker, 45 Va. (4 Gratt.) 277, 1848 Va. LEXIS 5 (1848); McBride v. McBride, 67 Va. (26 Gratt.) 476, 1875 Va. LEXIS 32 (1875); Peake v. Jenkins, 80 Va. 293 , 1885 Va. LEXIS 66 (1885).
An assignment to operate at the death of the assignor has been held to be testamentary. Pollock v. Glassell, 43 Va. (2 Gratt.) 439, 1846 Va. LEXIS 7 (1846).
Indorsement on insurance policy. —
As to indorsement on insurance policy as will, see Grand Fountain U.O.T.R. v. Wilson, 96 Va. 594 , 32 S.E. 48 , 1899 Va. LEXIS 106 (1899).
Deed intended to take effect after death. —
While a deed may operate as a will, if executed in accordance with the statute of wills, it must be intended to take effect only after maker’s death for it to do so. Hall v. Hall, 109 Va. 117 , 63 S.E. 420 , 1909 Va. LEXIS 9 (1909); Mumpower v. Coatle, 128 Va. 1 , 104 S.E. 706 , 1920 Va. LEXIS 89 (1920).
Will in form of letter. —
See Jones' Adm'r v. Irvin, 4 Va. L. Reg. 525 (1898).
IV.Execution.
A.Signing and Sealing.
This section does not designate the place of signature. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
Signature need not appear at end of will. —
The signature need not appear at the foot or end of the instrument, provided the paper shows on its face that the name placed in the writing was intended as a signature. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729, 1945 Va. LEXIS 192 (1945); McElroy v. Rolston, 184 Va. 77 , 34 S.E.2d 241, 1945 Va. LEXIS 131 (1945).
This section does not specify where the signature shall be placed in the writing and while placing one’s name at the end of the instrument may be the best and clearest way of signing a will, the signature does not necessarily have to appear at the foot or end of the writing, however to meet the statute’s requirement, it must appear unequivocally from the face of the writing that the person who writes his name therein intends it as his signature. Slate v. Titmus, 238 Va. 557 , 385 S.E.2d 590, 6 Va. Law Rep. 744, 1989 Va. LEXIS 172 (1989).
It may appear after attestation clause. —
The attestation clause is no part of the will, and so the fact that the testator’s signature appears after it is unimportant. All that is necessary is that it must appear on the face of the document that the party signing did in fact intend to sign in the capacity of testator. Presbyterian Orphans' Home v. Bowman, 165 Va. 484 , 182 S.E. 551 , 1935 Va. LEXIS 314 (1935).
But it must be manifest that name is intended as signature. —
No mere intention or effort to dispose of property by will, however clearly and definitely expressed in writing, is sufficient. Such purpose must be executed in the only manner authorized by this section; that is, the writing itself must be authenticated by the signature of the decedent. It is not sufficient to raise a doubt as to whether his name is intended to authenticate the paper which is propounded as a will, for, to use the explicit language of this section, it must be signed “in such manner as to make it manifest that the name is intended as his signature,” and unless so signed it is not valid. Meany v. Priddy, 127 Va. 84 , 102 S.E. 470 , 1920 Va. LEXIS 34 (1920); Waller v. Waller, 42 Va. (1 Gratt.) 454, 1845 Va. LEXIS 12 (1845) (see Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 (1890); Albert v. Stafford, 123 Va. 338 , 96 S.E. 761 (1918); Forrest v. Turner, 146 Va. 734 , 133 S.E. 69 (1926)).
A paper in all other respects good as a holographic will, and concluding, “I, William Dinning, say this is my last will and testament,” was sufficiently signed. This section was designed to let in wills not signed at the foot or end, if signed in such manner as to afford internal evidence of authenticity equally convincing. Dinning v. Dinning, 102 Va. 467 , 46 S.E. 473 , 1904 Va. LEXIS 92 (1904).
The will of a testatrix was written on six sheets of paper and each one of the sheets of paper upon which the will appeared, except the last, had already been signed by the testatrix, when the attesting witnesses were called upon to witness the execution of the will, and the testatrix in the presence of the witnesses affixed her signature to the margin of the last sheet nearly opposite the end of the will and above the concluding clause. It was held that the will was signed by the testatrix in such a manner as to make it manifest that the name was intended as a signature and the will was duly executed. Murguiondo v. Nowland, 115 Va. 160 , 78 S.E. 600 , 1913 Va. LEXIS 18 (1913).
And insertion of name at commencement of will is equivocal. —
It is well settled that it is an equivocal act to insert the name at the commencement of a will, and unless it appears affirmatively from something on the face of the paper that it was intended as a signature it is not a sufficient signing under the statute. Parol evidence is not admissible upon the question of finality of intention, when this internal evidence, to be afforded by the face of the paper, is wanting. Ramsey v. Ramsey's Ex'r, 54 Va. (13 Gratt.) 664, 1857 Va. LEXIS 28 (1857); Roy v. Roy's Ex'r, 57 Va. (16 Gratt.) 418, 1863 Va. LEXIS 8 (1863); Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 , 1890 Va. LEXIS 17 (1890); Waller v. Waller, 42 Va. (1 Gratt.) 454, 1845 Va. LEXIS 12 (1845) (see also Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729 (1945); McElroy v. Rolston, 184 Va. 77 , 34 S.E.2d 241 (1945)).
Name on an envelope is not a signature at all, but a mere label or endorsement of the envelope, containing what the testator supposed was already a validly executed will. Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 , 1890 Va. LEXIS 17 (1890).
Will need not be signed by testator himself. —
Our statute does not require that the will be signed by the testator himself. It may be signed “by some other person in his presence and by his direction.” Peake v. Jenkins, 80 Va. 293 , 1885 Va. LEXIS 66 (1885); Chappell v. Trent, 90 Va. 849 , 19 S.E. 314 , 1893 Va. LEXIS 63 (1893).
Acknowledgment in presence of witnesses is sufficient. —
Acknowledgment of the signature in the presence of witnesses is sufficient. Burwell v. Corbin, 22 Va. (1 Rand.) 131, 10 Am. Dec. 494 (1822), wherein the paper was held not proved according to the statute. See Beane v. Yerby, 53 Va. (12 Gratt.) 239, 1855 Va. LEXIS 15 (1855).
If the paper has been signed by the testator, acknowledgment is a recognition and ratification of his signature. If his name has been subscribed to the paper by another person, acknowledgment is a recognition and ratification of the signature as having been made for him, in his presence, and by his direction. Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 1849 Va. LEXIS 14 (1849); Albert v. Stafford, 123 Va. 338 , 96 S.E. 761 , 1918 Va. LEXIS 33 (1918) (holding proof of signature or acknowledgement essential to probate).
Meaning of “signature” is not restricted to a written name. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
Signature may be by mark. —
Where a testator puts his mark to the subscription of his name to his will in the presence of two or more subscribing witnesses, this is a sufficient signing thereof, within the meaning of this section. Clarke v. Dunnavant, 37 Va. (10 Leigh) 13, 1839 Va. LEXIS 15 (1839); Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 1849 Va. LEXIS 14 (1849); Jensen v. Peck, 16 Va. L. Reg. 915 (1911); Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
Mark is unnecessary where signature is by another. —
Where the will is signed by another, the testator need not add his mark. But the adding of the mark after attestation by witnesses, is a superfluous and immaterial matter. Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 1849 Va. LEXIS 14 (1849).
Law does not require a will to be sealed. Pollock v. Glassell, 43 Va. (2 Gratt.) 439, 1846 Va. LEXIS 7 (1846).
B.Witnesses to Signing or Acknowledgment.
1.Necessity.
Proponent must show signing or acknowledgment before witnesses. —
Where the proponents of a purported will, written by one other than the testatrix, failed to show that the testatrix either signed the will or acknowledged its execution in the presence of the subscribing witnesses, it was error to admit the paper to probate, under this section. Albert v. Stafford, 123 Va. 338 , 96 S.E. 761 , 1918 Va. LEXIS 33 (1918).
Purpose of requirement. —
The purpose of this section in requiring subscription by competent witnesses in the presence of a testator is to prevent fraud and imposition upon the testator and the substitution of a surreptitious will. Their subscription is to establish and prove the genuineness of testator’s signature. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
Same proof required for wills of personalty and realty. —
In 1835 the legislature, in consequence of the decision in Worsham’s Adm’r v. Worsham’s Ex’r, 32 Va. (5 Leigh) 589 (1835), and at the suggestion of the court which pronounced that decision, enacted a statute, Acts of 1834-35, ch. 60, Sess. Acts, p. 43, requiring the same proof in cases of wills of personalty as of realty. Gibson v. Beckham, 57 Va. (16 Gratt.) 321, 1862 Va. LEXIS 4 (1862).
Document was not valid will. —
Document a decedent returned to her attorney containing handwritten entries and typewritten text was not a valid will because it was neither wholly in the decedent’s handwriting nor duly attested by two competent witnesses. Berry v. Trible, 271 Va. 289 , 626 S.E.2d 440, 2006 Va. LEXIS 27 (2006).
2.Competency.
Attesting witnesses must be competent at the time of attestation. Bruce v. Shuler, 108 Va. 670 , 62 S.E. 973 , 1908 Va. LEXIS 82 (1908).
Competent witness is one qualified to testify in court. —
A competent witness is a person who, at the time of making the attestation, was qualified to testify in court to facts which he attests by subscribing his name to the will. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
Executor, legatee or notary may be witness. —
A witness is not incompetent because of his position as executor or legatee under the will, nor because he is a notary public. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
Notary who witnesses testator’s mark is attesting witness. —
A notary public who makes his certificate and signs his name as notarial witness to a testator’s mark, in order to allay any suspicion that might arise from the fact that the testator signed by mark instead of subscribing his name, is nevertheless an attesting witness to the will. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
And his official certificate is superfluous. —
Where an officer authorized to take acknowledgments or to make certifications attaches his official certificate to a will, the officer is regarded as a witness, the certificate being regarded as superfluous. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
3.Request to Subscribe.
Request of third person. —
A request to a witness to subscribe a will, made by a third person in the hearing of the testator, is, in law, the request of the testator, if he is conscious and does not dissent therefrom. Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56, 1878 Va. LEXIS 49 (1878).
Signature as amanuensis, without request to attest, is insufficient. Peake v. Jenkins, 80 Va. 293 , 1885 Va. LEXIS 66 (1885) (distinguishing Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846), where a witness adopted her signature already affixed for another purpose).
4.Acknowledgment as Dispensing With Signing in Presence of Witnesses.
Section provides two modes of execution. —
Under the provision of this section that the signature of the testator “shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time,” each mode is a mode of execution, and a proper execution of a will may be made in either manner, if there is a compliance with the other requisites. Barnes v. Bess, 171 Va. 1 , 197 S.E. 403 , 1938 Va. LEXIS 252 (1938).
Witnesses need not see testator sign. —
It is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature; or even that the instrument is his will. It is enough that he should acknowledge in their presence, that the act is his, with a knowledge of the contents of the instrument; and with the design that it should be a testamentary disposition of his property. Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 1849 Va. LEXIS 14 (1849) (see also Beane v. Yerby, 53 Va. (12 Gratt.) 239 (1855)).
Virginia has no statute defining acknowledgment. —
Virginia has no statute providing a definition of what constitutes a sufficient acknowledgment of a will, nor has there been an occasion to make such a definition. The courts are at variance, especially as to what is sufficient to constitute an implied acknowledgment, and the decisions are dependent upon the factual situations or the language of the statutes involved. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948).
5.Necessity for Witnesses to Be Present at Same Time.
Witnesses must be present together at time of acknowledgment. —
Under this section, the witnesses must be present together at same time, when the testator acknowledges the signature or the instrument to be his act. Parramore v. Taylor, 52 Va. (11 Gratt.) 220, 1854 Va. LEXIS 18 (1854); Beane v. Yerby, 53 Va. (12 Gratt.) 239, 1855 Va. LEXIS 15 (1855); Green v. Crain, 53 Va. (12 Gratt.) 252, 1855 Va. LEXIS 16 (1855).
A witness to a will must be able to testify not only that the testator signed his name, or acknowledged his signature in his presence, but that such signature was affixed, or acknowledgment of the instrument was made, in the presence of another person. In other words, the testator must sign his name, or acknowledge the instrument in the presence of at least two competent persons present at the same time. French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
For origin and history of this provision, see Parramore v. Taylor, 52 Va. (11 Gratt.) 220, 1854 Va. LEXIS 18 (1854).
But they need not sign in presence of each other. —
It is not necessary that the witnesses should be present together when they subscribe their names to the will. Parramore v. Taylor, 52 Va. (11 Gratt.) 220, 1854 Va. LEXIS 18 (1854); Beane v. Yerby, 53 Va. (12 Gratt.) 239, 1855 Va. LEXIS 15 (1855); Green v. Crain, 53 Va. (12 Gratt.) 252, 1855 Va. LEXIS 16 (1855).
6.Necessity for Witnesses to Sign in Presence of Testator.
Witnesses must sign in presence of testator. —
The Virginia statute requires that the attesting witnesses “shall subscribe the will in the presence of the testator.” Neil v. Neil, 28 Va. (1 Leigh) 6, 1829 Va. LEXIS 2 (1829); Boyd v. Cook, 30 Va. (3 Leigh) 32, 1831 Va. LEXIS 33 (1831); Pollock v. Glassell, 43 Va. (2 Gratt.) 439, 1846 Va. LEXIS 7 (1846); Moore v. Moore's Ex'r, 49 Va. (8 Gratt.) 307, 1851 Va. LEXIS 66 (1851); Sturdivant v. Birchett, 51 Va. (10 Gratt.) 67, 1853 Va. LEXIS 27 (1853); Nock v. Nock's Ex'rs, 51 Va. (10 Gratt.) 106, 1853 Va. LEXIS 28 (1853); Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56, 1878 Va. LEXIS 49 (1878); Baldwin v. Baldwin, 81 Va. 405 , 1886 Va. LEXIS 107 (1886); Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 , 1888 Va. LEXIS 70 (1888); Chappell v. Trent, 90 Va. 849 , 19 S.E. 314 , 1893 Va. LEXIS 63 (1893).
Presence of testator means conscious presence. —
The presence of the testator wherein the statute requires attesting witnesses to subscribe their names as such to a will, means the testator’s “conscious presence.” Baldwin v. Baldwin, 81 Va. 405 , 1886 Va. LEXIS 107 (1886); Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 , 1888 Va. LEXIS 70 (1888).
Recognition of attestation in testator’s presence is substantial signing. —
It has been held that the recognition of their attestation by the witnesses to the testator, is a substantial subscribing of their names as witnesses in his presence. Sturdivant v. Birchett, 51 Va. (10 Gratt.) 67, 1853 Va. LEXIS 27 (1853) (see also Jensen v. Peck, 16 Va. L. Reg. 915 (1911)).
Where testator could have seen signing but did not. —
A court of four judges equally divided upon the question whether an attestation of a will out of the room in which the testator is lying, and out of his sight, but in a case in which the testator was able, and might have placed himself in a position to see the witnesses when they signed the paper, is a valid attestation. Moore v. Moore's Ex'r, 49 Va. (8 Gratt.) 307, 1851 Va. LEXIS 66 (1851) (see also Neil v. Neil, 28 Va. (1 Leigh) 6 (1829)).
Presumptions. —
An attestation of a will of lands made in the same room with testator is prima facie an attestation in his presence, according to the statute of wills; attestation not made in the same room is prima facie not an attestation in his presence. But as, in the one case, the attestation is good, if shown to have been made within the scope of testator’s view from his actual position, so in the other, it is not good, if it appear, that in the actual relative situation of testator and witnesses, he could not possibly have seen the act of attestation, nor have so changed situation as to have enabled him to see it, without aid from others, which was at hand, but was neither asked nor given. Neil v. Neil, 28 Va. (1 Leigh) 6, 1829 Va. LEXIS 2 (1829). And see Nock v. Nock's Ex'rs, 51 Va. (10 Gratt.) 106, 1853 Va. LEXIS 28 (1853); Baldwin v. Baldwin, 81 Va. 405 , 1886 Va. LEXIS 107 (1886).
7.Order of Signing.
Witnesses should subscribe their names after the testator has subscribed his; for if the purpose of the attestation is to identify the signature of the testator, this purpose cannot properly be carried out if they precede him in signing. There can be no attestation until there is something to attest. Dudleys v. Dudleys, 30 Va. (3 Leigh) 436, 1832 Va. LEXIS 3 (1832).
But order is immaterial where transaction is one continuous act. —
It is immaterial whether the testator makes his signature before or after the witnesses sign the will, where the whole transaction is one continuous act, completed within a few minutes. Rosser v. Franklin, 47 Va. (6 Gratt.) 1, 1849 Va. LEXIS 14 (1849) (see Pollock v. Glassell, 43 Va. (2 Gratt.) 439 (1846); Parramore v. Taylor, 52 Va. (11 Gratt.) 220 (1854)).
And acknowledgment of attestation after signing by testator is sufficient. —
Where the signatures of witnesses are duly acknowledged in the presence of the testator at the time of, or after, signing or acknowledging by the testator, it is sufficient. Jensen v. Peck, 16 Va. L. Reg. 915 (1911).
8.Manner of Signing and Form of Attestation.
The general rule that a witness must intend to attest the will as a witness, is not applied mechanically; the important fact is not how the witness regarded himself during execution of the will, but what he observed, because the witness’ signature serves mainly to identify to whom the testator acknowledged the instrument. In other words, the witness need not realize his status during execution of the will. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735, 6 Va. Law Rep. 971, 1990 Va. LEXIS 25 (1990).
Word “witnesses” is unnecessary. —
This section requires the attestation of two subscribing witnesses, but no particular form, or place on the paper is required; yet the witnesses, unless the will is holograph, must subscribe as witnesses, though the word “witnesses” need not appear. Peake v. Jenkins, 80 Va. 293 , 1885 Va. LEXIS 66 (1885).
Meaning of “subscribe.” —
The literal meaning of the word “subscribe,” as used in this section is “to write underneath.” French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
Two witnesses placed their signatures below the signature of the testatrix on page four of the will, in the presence of the testatrix and in the presence of each other. As a result, the will met § 64.1-49’s subscription requirement, as the meaning of the word subscribe was to place underneath, and the will should have been admitted to probate since there was no indication that the will had been fraudulently executed. Hampton Rds. Seventh-Day Adventist Church v. Stevens, 275 Va. 205 , 657 S.E.2d 80, 2008 Va. LEXIS 32 (2008).
Witness may make his mark. —
It is settled law that a subscribing witness may attest a will by making his mark, his name being written by another in his presence and at his request. Jesse v. Parker's Adm'rs, 47 Va. (6 Gratt.) 57, 1849 Va. LEXIS 19 (1849).
Attestation is the act of the witnesses, and it was not intended to confide to them the duty of stamping their testimony upon the paper. The subscription of the witnesses is substantially the attestation contemplated by this section, and it is sufficient if the purpose be indicated by the briefest memorandum or merely by a fair presumption arising from the local position of their signatures upon the paper. Whether a memorandum of attestation be general or special, it may be denied or contradicted by the subscribing witnesses, in the whole or in part, and, of course, is open to explanation if in anywise ambiguous. French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
Validity of will does not depend on attestation clause. —
An attesting witness is one who signs his name to an instrument for the purpose of proving and identifying it, or one who signs with the intention of being considered a witness to an act in question. The validity of a will depends not on the attestation clause but on the conformity of the execution to the requirement of this section. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948); French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
Any form of signing with the intention of acting as a witness is sufficient, where, as in Virginia, a formal attestation is unnecessary. Attestation is mental, while subscription is mechanical. Attestation is the act of the senses and subscription is the act of the hand. To attest a signature means to take note mentally that the signature exists as a fact. Ferguson v. Ferguson, 187 Va. 581 , 47 S.E.2d 346, 1948 Va. LEXIS 249 (1948); French v. Beville, 191 Va. 842 , 62 S.E.2d 883, 1951 Va. LEXIS 141 (1951).
Need not state that will was duly signed and sealed. —
It is not necessary that the attestation clause shall state that the paper was duly signed and sealed by the testator. Pollock v. Glassell, 43 Va. (2 Gratt.) 439, 1846 Va. LEXIS 7 (1846).
Witnesses need not sign each sheet of paper. —
A will may be written on more than one sheet of paper, and it is good practice to have the testator identify each sheet, but it is not necessary, and it is not necessary that the attesting witnesses sign each sheet or acquaint themselves with the contents of the will. Dearing v. Dearing, 132 Va. 178 , 111 S.E. 286 , 1922 Va. LEXIS 16 (1922); Presbyterian Orphans' Home v. Bowman, 165 Va. 484 , 182 S.E. 551 , 1935 Va. LEXIS 314 (1935).
Purported witness’s name appearing in the first sentence of a will, the appearance which served to name her as a beneficiary under the will, “constituted a sufficient compliance with prerequisites of this section to permit the document to be admitted to probate. Robinson v. Ward, 239 Va. 36 , 387 S.E.2d 735, 6 Va. Law Rep. 971, 1990 Va. LEXIS 25 (1990).
C.Publication.
Signing and acknowledgment amount to publication. —
Signing and acknowledgment of a will before witnesses amount to what is called a publication of the will, although they are not informed that it is a will and though the testator even calls it a deed. Beane v. Yerby, 53 Va. (12 Gratt.) 239, 1855 Va. LEXIS 15 (1855).
Time of publication is not necessarily fixed by the date of the will; and it may be proved to have been published on a subsequent day, by two subscribing witnesses. Bagwell v. Elliott, 23 Va. (2 Rand.) 190, 1824 Va. LEXIS 3 (1824).
V.Proof of Execution.
Burden of proving that the will has been executed in the manner required by this section is upon the proponents. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934); Cross v. Grimes, 184 Va. 926 , 37 S.E.2d 1, 1946 Va. LEXIS 157 (1946); Grady v. Fauls, 189 Va. 565 , 53 S.E.2d 830, 1949 Va. LEXIS 200 (1949).
No particular mode of proof is prescribed. Dudleys v. Dudleys, 30 Va. (3 Leigh) 436, 1832 Va. LEXIS 3 (1832); Pollock v. Glassell, 43 Va. (2 Gratt.) 439, 1846 Va. LEXIS 7 (1846); Jesse v. Parker's Adm'rs, 47 Va. (6 Gratt.) 57, 1849 Va. LEXIS 19 (1849); Johnson v. Dunn, 47 Va. (6 Gratt.) 625, 1850 Va. LEXIS 12 (1850); Lamberts v. Cooper's Ex'r, 70 Va. (29 Gratt.) 61, 1877 Va. LEXIS 5 (1877); Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56, 1878 Va. LEXIS 49 (1878).
Burden of proof of date of alteration. —
The true rule is that there is no presumption of law and that the burden of proof is on the proponent to show that any alteration which he wishes to be considered effective was made before execution; but the face of the paper and the obvious circumstances may amply meet that burden, and the inference to be drawn is always one of fact. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934).
Presumption in favor of finding proper execution. —
Courts lean strongly in favor of upholding the validity of wills fairly made, where there is no imputation of fraud. Toward that end, every reasonable presumption ought to be made in favor of finding proper execution of a will. Martin v. Coleman, 234 Va. 509 , 362 S.E.2d 732, 4 Va. Law Rep. 1367, 1987 Va. LEXIS 281 (1987).
Due execution may be proved by testimony of one witness. —
While a will must be attested by two competent witnesses, its due execution can be proved by the testimony of one witness, but that witness must prove all the facts required by this section to be proved as necessary to the due execution of a will, and among them, that it was attested by two competent witnesses. Bruce v. Shuler, 108 Va. 670 , 62 S.E. 973 , 1908 Va. LEXIS 82 (1908) (see also Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878)).
And proof of handwriting of other witness. —
A will of land may be proved by one witness and proof of the handwriting of the other. Smith v. Jones, 27 Va. (6 Rand.) 33, 1827 Va. LEXIS 44 (1827).
Where one attesting witness not credible. —
A testamentary paper appeared to be attested by two witnesses; but one of them was not a credible witness, and his attestation was not proved by the other attesting witness, or any other person. Therefore, the paper was not so proved as to be admitted to probate. Johnson v. Dunn, 47 Va. (6 Gratt.) 625, 1850 Va. LEXIS 12 (1850).
Any one subscribing witness can prove execution and attestation of will by himself and the others, and if his testimony is satisfactory that will suffice. Martin v. Coleman, 234 Va. 509 , 362 S.E.2d 732, 4 Va. Law Rep. 1367, 1987 Va. LEXIS 281 (1987).
Expert’s testimony was insufficient without proof by disinterested witness. —
Expert’s testimony, comparing the will with exemplars of the testator’s handwriting, is insufficient without proof, by a disinterested witness, that the exemplars were themselves in the testator’s handwriting. Bowers v. Huddleston, 241 Va. 83 , 399 S.E.2d 811, 7 Va. Law Rep. 1320, 1991 Va. LEXIS 14 (1991).
Weight of evidence. —
The evidence of witnesses who were present at the execution of the will is entitled to peculiar weight, and especially is this the case with attesting witnesses. Beckwith v. Beckwith, 1 Va. (1 Wash.) 224, 1 Wash. 224, 1793 Va. LEXIS 38 (1793); Spencer v. Moore, 8 Va. (4 Call) 423, 1798 Va. LEXIS 44 (1798); Young v. Barner, 68 Va. (27 Gratt.) 96, 1876 Va. LEXIS 8 (1876).
When court will presume that this section was complied with. —
If the witnesses to a will are dead, or if there is a failure of recollection on their part, the court will often presume, the will being in other respects regular, that the requirements of this section have been complied with in the formal execution of the instrument. Young v. Barner, 68 Va. (27 Gratt.) 96, 1876 Va. LEXIS 8 (1876) (see Smith v. Jones, 27 Va. (6 Rand.) 33 (1827); Boyd v. Cook, 30 Va. (3 Leigh) 32 (1831); Dudleys v. Dudleys, 30 Va. (3 Leigh) 436 (1832); Clarke v. Dunnavant, 37 Va. (10 Leigh) 13 (1839)).
Value of attestation clause as evidence. —
Upon the death or absence of the subscribing witnesses, the attestation clause becomes prima facie evidence that the will was executed with the formalities recited therein. Clarke v. Dunnavant, 37 Va. (10 Leigh) 13, 1839 Va. LEXIS 15 (1839).
Testimony of attesting witness impeaching validity of will. —
The general rule is, that one signing his name as witness to a will, by this act solemnly testifies to the testator’s sanity. If afterwards he attempts to impeach the will’s validity, his testimony is not to be positively rejected, but received with the most scrupulous jealousy. Young v. Barner, 68 Va. (27 Gratt.) 96, 1876 Va. LEXIS 8 (1876).
But this rule ought not to be rigorously applied where such witnesses, suddenly called upon by the propounder to attest the will without time for due deliberation, testify in his behalf and are bound to detail the circumstances, affording the only reliable data from which the court can deduce its conclusions. Tucker v. Sandridge, 85 Va. 546 , 8 S.E. 650 , 1888 Va. LEXIS 70 (1888) (see also Lamberts v. Cooper’s Ex’r, 70 Va. (29 Gratt.) 61 (1877); Cheatham v. Hatcher, 71 Va. (30 Gratt.) 56 (1878)).
In a suit to contest a will, it was contended that the will had not been executed in the manner prescribed in this section. The basis of the contention was the admission of one of the attesting witnesses, prior to the trial, that he did not recall the circumstances as to the presence of the parties when the will was signed and witnessed. However, at the trial the same witness testified that after having discussed the matter with the executor, who was likewise present, he was positive that the will had been signed and witnessed when all of the necessary parties were present together. This testimony was fully corroborated by that of the other attesting witness and the executor. It was held that there was no merit in the contention. Mullins v. Coleman, 175 Va. 235 , 7 S.E.2d 877, 1940 Va. LEXIS 166 (1940).
VI.Holographic Wills.
A.Requisites and Validity.
Will wholly in testator’s handwriting and signed by him is valid. —
If the will is written wholly in the handwriting of the testator and signed by him it is a valid will. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881, 1940 Va. LEXIS 165 (1940).
Word “wholly” is a strong word; but words in law are rarely, if ever, given their absolute and utter meaning, and wholly is not used in this section in its absolute, utter, and rigidly uncompromising sense. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950).
Attestation is unnecessary. —
If the writing is signed by the testator in such manner as to make it manifest that the name is intended as a signature and is wholly written by him, it is a valid will, though it is unattested by witnesses. Brown v. Hall, 85 Va. 146 , 7 S.E. 182 , 1888 Va. LEXIS 21 (1888) (see Roy v. Roy’s Ex’r, 57 Va. (16 Gratt.) 418, 84 Am. Dec. 696 (1863); Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 (1888)).
Paper purporting to be an attested will may be probated as a holographic will even if it cannot be proven an attested will. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934).
Unsigned attestation clause is immaterial. —
A will wholly written, signed and sealed by the testator, who is of sound mind, containing an attestation clause unsigned by witnesses, is valid. Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 , 1888 Va. LEXIS 88 (1888).
Printed portions of will written on form may be disregarded. —
Where a codicil was written upon a blank form, printed portions of the form on which the writing is found may be disregarded, leaving that portion of the writing which was wholly in the handwriting of the testator and signed by him, and which was complete and entire in itself, a holographic codicil which may be admitted to probate. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
Subsequent change by other than testatrix. —
A holographic will written in 1935, on which certain changes were made subsequently in 1946 by a friend of the testatrix solely in order to improve punctuation, capitalization, and phraseology and not to change the meaning of the document, was held valid under this section. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950).
Alterations made by testator do not invalidate will. —
Erasures and other alterations made by the testator in a holographic will, even though they are made after the will has been executed, do not invalidate it if his name still remains in such manner as to manifest that it was intended as a signature. The will becomes reexecuted with all the changes as valid and subsisting parts of the new will. Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934).
The only logical conclusion to be drawn from interlineations and additions in a holograph will which are in the handwriting of the testator above the signature is that the testator intended for his original signature to be a reexecution of the will with interlineations and additions included. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
But unsigned postscript is invalid. —
The abbreviation “P.S.,” preceding a sentence written below the signature of a holograph will, and the position of the sentence on the paper, indicated that the sentence was written after the signature was made, and, where nothing on the face of the paper made it manifest that the signature authenticated the words appearing below it, the sentence could not be given effect either as a part of the original will or as a codicil. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
No inference of reexecution as to matter appearing after signature. —
But when it appears from the face of the will that there is a testamentary disposition of all or part of testator’s estate appearing after the signature and nothing more, no logical inference of reexecution or reauthentication can be drawn. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
Another paper of a testamentary character, bearing the same date, and found folded up with a valid holograph will and written and signed by the testator, is a valid codicil, though it does not refer to the will. Perkins v. Jones, 84 Va. 358 , 4 S.E. 833 , 1888 Va. LEXIS 88 (1888).
Codicil may establish will not duly executed. —
A duly executed codicil may have the effect of establishing a holographic will which has not been duly executed, but, in order to accomplish this, the will sought to be published must be clearly identified, and, if the codicil is to be effective upon a condition, such condition must be met. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729, 1945 Va. LEXIS 192 (1945).
This section makes no distinction, as to what constitutes a sufficient signature, between holograph and attested wills. Pilcher v. Pilcher, 117 Va. 356 , 84 S.E. 667 , 1915 Va. LEXIS 44 (1915).
Name must have been intended as signature. —
The name appearing on a holograph will is not to be considered a signature unless it appears to have been intended as such, and then it is only a signature as to so much of the paper as it was designed to authenticate. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
Name of testator at beginning is equivocal. —
The name of a testator at the commencement of a holograph will is an equivocal act. Ramsey v. Ramsey's Ex'r, 54 Va. (13 Gratt.) 664, 1857 Va. LEXIS 28 (1857); Roy v. Roy's Ex'r, 57 Va. (16 Gratt.) 418, 1863 Va. LEXIS 8 (1863).
The placing of the name in the commencement of a holographic will does not of itself indicate that it was intended as a signature. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729, 1945 Va. LEXIS 192 (1945).
And evidence of intent is required. —
It is essential that a holographic will, like any other, be signed by the testator in such a manner as to make it manifest that the name is intended as a signature; and therefore, in the absence of any affirmative evidence on the face of the paper that it is intended as a signature, the testator’s name appearing at the commencement or in the body of the will is not a sufficient signature. Hamlet v. Hamlet, 183 Va. 453 , 32 S.E.2d 729, 1945 Va. LEXIS 192 (1945).
But name of testator at beginning may be signature if so intended. —
Holographic paper writing which began “Roberta Leckie Rittenhouse Written by myself October 13th 1946 My Will,” was a complete document disposing of all the testatrix’s property, contained no blanks or anything that would indicate that it was not her last will and testament and concluded “This is my last will and testament,” showed that the name at the top was manifestly intended as a signature. Hall v. Brigstocke, 190 Va. 459 , 58 S.E.2d 529, 1950 Va. LEXIS 144 (1950).
Decedent’s signature in a pre-printed box at the beginning of a handwritten journal purporting to dispose of decedent’s property upon her death did not affirmatively demonstrate that the decedent intended the signature to operate as her signature on a will as required by this section, and the journal was therefore held not to constitute a holographic will. Kidd v. Gunter, 262 Va. 442 , 551 S.E.2d 646, 2001 Va. LEXIS 97 (2001).
Will may be signed by initials. —
A holograph will to which the testator affixes the initials of his name at the end of the writing is sufficiently signed under this section. Pilcher v. Pilcher, 117 Va. 356 , 84 S.E. 667 , 1915 Va. LEXIS 44 (1915).
Initials must be intended as signature. —
Holographic writing did not comply with this statute because, although the decedent’s initials appeared at the end of the writing, after considering the extrinsic evidence, the circuit court properly determined that the decedent’s initials were not written in a manner to make manifest that they were intended as a signature to authenticate the writing as the decedent, in the execution of his will and property settlement agreement, demonstrated that he used his full signature to authenticate legal and testamentary documents; and the use of only his initials therefore raised a doubt as to whether he signed the writing with the intent to authenticate it as and for a codicil. Irving v. Divito, 294 Va. 465 , 807 S.E.2d 741, 2017 Va. LEXIS 174 (2017).
Finality of holograph and attested wills compared. —
In holographic wills proof of the handwriting establishes the identity of the paper and the connection of the maker of the will with it. The finality of such a will depends upon the signature, which must be made “in such manner as to make it manifest that the name is intended as a signature”; attested wills not in the handwriting of the testator become complete and final when attested by two witnesses in the mode prescribed by this section. Murguiondo v. Nowland, 115 Va. 160 , 78 S.E. 600 , 1913 Va. LEXIS 18 (1913).
Holographic will not found. —
Handwriting on a 1997 document was not a holographic will as the decedent’s handwritten language considered as a whole was not self-contained such that it could be understood without reference to the typewritten text where: (1) many of the substantive handwritten entries were plainly related to the typewritten text; (2) there was no basis to conclude that the decedent intended that her signature on one page apply only to the isolated phrase propounded by her sister; (3) the decedent signed the bottom of five other pages that she returned to her attorney and made substantive changes to the typewritten text on several of those pages; (4) whether the decedent intended that her signatures validate all the typed and handwritten material appearing above each signature or whether she intended that the signatures merely verify her changes to the document that she contemplated her attorney would redraft could not be determined; and (5) the decedent’s signature at the end of the document was not consistent with the sister’s claim that the proffered holograph alone was the decedent’s last will. Berry v. Trible, 271 Va. 289 , 626 S.E.2d 440, 2006 Va. LEXIS 27 (2006).
B.Proof of Handwriting.
Burden of proving handwriting is on proponent. —
Where the document is sought to be probated as a holographic will, the burden is on the proponents to show that it is “wholly in the handwriting of the testator.” Cross v. Grimes, 184 Va. 926 , 37 S.E.2d 1, 1946 Va. LEXIS 157 (1946).
Effect of admitting testimony of interested witnesses. —
That a holograph will was wholly in the handwriting of the testator was amply proved by the testimony of two disinterested witnesses and the introduction of authenticated documents in the testator’s handwriting, which the trial court compared with the will, and it was immaterial that three allegedly interested witnesses also testified to the handwriting. Fenton v. Davis, 187 Va. 463 , 47 S.E.2d 372, 1948 Va. LEXIS 236 (1948).
It is competent to prove by whom pretended will written. —
While it is enough to show by competent evidence that a pretended holographic will is not in decedent’s handwriting, it is also competent to prove by whom it was written. Brown v. Hall, 85 Va. 146 , 7 S.E. 182 , 1888 Va. LEXIS 21 (1888) (see Tucker v. Calvert, 10 Va. (6 Call) 90 (1806); Warwick v. Warwick, 86 Va. 596 , 10 S.E. 843 (1890)).
CIRCUIT COURT OPINIONS
Editor’s note. —
Most of the cases below were decided under former Title 64.1 and prior law.
Applicability. —
Section 64.2-404 applied to a document that petitioners sought to admit as the decedent’s will where the document was neither wholly in the decedent’s handwriting nor signed by two witnesses, thus, it did not meet the requirements of § 64.2-403 , and § 64.2-404 served to relieve strict compliance with the witness requirements of § 64.2-403 . Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).
Witnesses need not sign each sheet of paper. —
Although a self-proving certificate was defective because the attesting witnesses printed their signatures on one page of a purported will and signed their names on another page, the two pages taken together constituted a sufficient attestation provision. In re Estate of Krakowian, 64 Va. Cir. 278, 2004 Va. Cir. LEXIS 158 (Loudoun County Mar. 25, 2004).
Witnesses must sign in presence of testator. —
Where the written will was signed by the decedent in the presence of three witnesses, all of whom were present at the same time and who subscribed in the presence of one another and the decedent, the will was valid under § 64.1-49. Rudwick v. Lloyd, 69 Va. Cir. 139, 2005 Va. Cir. LEXIS 319 (Arlington County Oct. 13, 2005).
Power of attorney held not testamentary in character. —
Although a durable power of attorney that a decedent’s father executed stated that it was not to terminate on his death or disability, it was not a will under Virginia law because it gave the decedent’s administrator and another person power to sell property which the father inherited during the father’s lifetime, and the trial court refused to admit the power of attorney to probate when the father died before the property was sold. Shakeel v. Khanum, 62 Va. Cir. 188, 2003 Va. Cir. LEXIS 108 (Fairfax County June 23, 2003).
Requirement of testamentary intent applies to wills and codicils. —
Because it was clear from the terms of a codicil that the decedent intended it to take effect as her last will, as: (1) the codicil was self-sustaining in that it was a separate testamentary instrument and not necessarily dependent upon the proof or establishment of the will; (2) its provisions were not so involved with those of the will as to render it incapable of independent application; and (3) there was no valid objection to its being probated as a separate testamentary instrument, the codicil was a valid will and could be admitted to probate. Russell v. Lipps, 66 Va. Cir. 295, 2004 Va. Cir. LEXIS 351 (Norfolk Dec. 16, 2004).
The mere label “codicil” did not act as an impediment to its probative quality, and there was no warrant in the existing law of Virginia for the statement that a testamentary writing was not independently probative because it was styled a codicil or was in fact a codicil. Russell v. Lipps, 66 Va. Cir. 295, 2004 Va. Cir. LEXIS 351 (Norfolk Dec. 16, 2004).
Paper written entirely in a decedent’s handwriting met the requirements for a holographic codicil to the decedent’s will where the codicil had testamentary intent, as the second paragraph of the writing began with a phrase clearly indicating that the codicil was related to death. Eubank v. Eubank, 68 Va. Cir. 33, 2005 Va. Cir. LEXIS 92 (Amherst County Feb. 22, 2005).
Executor’s motion to admit the March 2, 2012, writing to probate was denied because it did not possess the requisite testamentary intent to be probated as a holographic codicil as the decedent did not reference her will, her estate, or even some time period for when the disposition of money was to be made. In re Estate of McKagen, 90 Va. Cir. 118, 2015 Va. Cir. LEXIS 43 (Fairfax County Mar. 24, 2015).
Executor’s motion to admit the December 7, 2012, writing to probate was granted because it met the requirements for a holographic codicil as that note was not invalid because it appeared that the decedent intended her first name to be the signature to her note, which was evidenced by the use of “Thanks” prior to signing her name, and the fact that the name was written at the conclusion of the note; and that note contained the requisite testamentary intent because the decedent did not expect the transfer to occur until her death, and only if her estate was valued at over $750,000. In re Estate of McKagen, 90 Va. Cir. 118, 2015 Va. Cir. LEXIS 43 (Fairfax County Mar. 24, 2015).
Testamentary intent lacking. —
Trial court rejected a surviving partner’s claim that the surviving partner and a deceased partner made a valid joint will when they signed an agreement which gave the deceased partner’s interest in a warehouse to the surviving partner because the agreement lacked the requisite testamentary intent and it was signed only by both partners and a notary public, and the partners could not serve as witnesses to their own joint will. Quenza v. Baum, 62 Va. Cir. 284, 2003 Va. Cir. LEXIS 295 (Norfolk July 14, 2003).
Testamentary intent established. —
The Court concludes that the three-page handwritten document evidences the requisite testamentary intent to establish it as a valid codicil because: (1) the use of the word “left” is “of testamentary significance and in that sense is in common use”; (2) the use of the word “left” and the fact the deceased signed the writing at the bottom of the page in a manner consistent with the signing of a testamentary instrument; and (3) the use of the phrase “to be divided equally” evinces the decedent’s desire to dispose of his property. In re Estate of Hamner, 73 Va. Cir. 424, 2007 Va. Cir. LEXIS 228 (Charlottesville July 13, 2007).
Purported will satisfied this section because (1) the testator sought assistance in executing his will, (2) the testator signed the will before three witnesses, (3) each witness signed in the presence of the testator and the other witnesses, and (4) one of the witnesses signed as a notary, who could serve as a witness. In re Canody Estate, 95 Va. Cir. 92, 2017 Va. Cir. LEXIS 21 (Nelson County Jan. 25, 2017), aff'd, 295 Va. 597 , 816 S.E.2d 286, 2018 Va. LEXIS 93 (2018).
Printed portions of will written on form may be disregarded. —
Two numbered handwritten paragraphs at the bottom of a pre-printed will document constituted the last will and testament of the decedent, and would be admitted to probate, disregarding the printed material, as it clearly was the decedent’s testamentary act, it disposed of all his property at his death, and it named the party to receive the property; although there was no formal expression of testamentary intent, no provision for payment of debts, and no appointment of a personal representative, these were not necessary. In re Will of Morris, 67 Va. Cir. 29, 2005 Va. Cir. LEXIS 7 (Spotsylvania County Jan. 31, 2005).
Section must be complied with. —
Executor was instructed that as the legal formalities were not satisfied, a decedent’s orally expressed wishes as to how her residuary estate was to be distributed could not be given effect, despite the testimony of three credible witnesses, without contradiction, as to a conversation, a week before a car accident in which the decedent was fatally injured, in which the decedent told them, quite specifically, about how she planned to divide her residuary estate. Estate of Doughtie, 70 Va. Cir. 329, 2006 Va. Cir. LEXIS 48 (Roanoke Mar. 27, 2006).
Defendant failed to meet her burden of proof to show that the decedent signed a 2012 will in conformity with Va. Code Ann. § 64.2-403 ; it was clear from the evidence that the 2012 will was an elaborate fake and that it was not prepared until after the decedent’s death. Palesis v. Hlouverakis, 88 Va. Cir. 293, 2014 Va. Cir. LEXIS 75 (Henrico County May 29, 2014).
Will offered for probate contained the same three pages as those present at the time of execution because (1) it was not statutorily required that the pages be stapled or that the testator initial each page, (2) credible testimony of the testator’s friend showed the will reflected the testator’s desires expressed shortly before he died, so the document submitted did not suffer from the substitution of any pages, and (3) the lack of a staple where one had been did not defeat the testator’s testamentary plan, as nothing showed pages were substituted. In re Canody Estate, 95 Va. Cir. 92, 2017 Va. Cir. LEXIS 21 (Nelson County Jan. 25, 2017), aff'd, 295 Va. 597 , 816 S.E.2d 286, 2018 Va. LEXIS 93 (2018).
Documents not properly executed. —
Evidence failed to show that the documents in question were properly executed as required, and the evidence was overwhelming that the documents had been procured by undue influence and fraud; the executor essentially self-appointed himself under an impeached will, and it was in the estate’s interest to investigate where the testator’s personal belongings had gone. Williams v. Machen, 104 Va. Cir. 70, 2019 Va. Cir. LEXIS 1189 (Fairfax County Dec. 16, 2019), aff'd, 299 Va. 701 , 858 S.E.2d 203, 2021 Va. LEXIS 89 (2021).
Requirements for due execution of will met. —
Clerk was directed to admit the decedent’s November 4, 2017, will to probate because the will was entirely in the handwriting of the decedent; the will met all the requirements for due execution of a will as no form of attestation was required, and the decedent wrote and signed the will in the presence of two witnesses who immediately signed the will in the presence of each other; it was irrelevant that the proponent of the will was both a witness and beneficiary to the will; and the will clearly demonstrated testamentary intent to leave the property to the proponent of the will when the decedent passed away and could not be interpreted as making a present gift, a draft, a memorandum, or instruction to an attorney for a future will. Will of Brockman, 103 Va. Cir. 153, 2019 Va. Cir. LEXIS 457 (Amherst County Sept. 27, 2019).
Codicil requirements not found. —
Writing did not comply with statutory requirements in that it was not manifest that the name on the writing was intended as the decedent’s signature; the writing, which removed the decedent’s son from the will entirely, was handwritten in cursive on a tab-divider in a binder, the writing established a thought of the decedent to make a change to his will and was tentative in nature, and thus testamentary intent to create a codicil had not been established by clear and convincing evidence. Irving v. Divito, 94 Va. Cir. 226, 2016 Va. Cir. LEXIS 143 (Chesapeake Sept. 2, 2016), aff'd, 294 Va. 465 , 807 S.E.2d 741, 2017 Va. LEXIS 174 (2017).
Where testator wrote a letter that purported to be a codicil to the will and did not sign the codicil but rather typed his name at the end of the letter, the codicil was not a valid codicil under Va. Code Ann. § 64.2-403 because it was not signed by the testator. In re Estate of Asmuth, 2021 Va. Cir. LEXIS 350 (Fairfax County Dec. 7, 2021).
Residuary clause. —
Wife’s motion for reconsideration to challenge the residuary clause of the late husband’s will was time barred because it was not filed within one year of the will being admitted to probate, but in any event, the husband was allowed to do what he did regarding the residuary clause. Thadani v. Malkani, 73 Va. Cir. 255, 2007 Va. Cir. LEXIS 75 (Fairfax County Apr. 9, 2007).
Holographic will admitted to probate. —
Decedent’s daughter was granted summary judgment in her action seeking to admit a writing as the last will and testament of the decedent because there was no genuine issue of material fact when the parties agreed that the relevant portion of the writing was wholly in the handwriting of the decedent, and the writing was on a typewritten form, was self-contained, and could be completely understood without reference to the typewritten text; the typewritten portion of the writing did not interfere or even interact with the handwriting requirement for a holographic will, two plainly disinterested witnesses testified under oath that the writing was wholly in the handwriting of the decedent, and the language the decedent used clearly expressed her intent to leave all of her property to the daughter. Klundt v. Klundt, 78 Va. Cir. 162, 2009 Va. Cir. LEXIS 14 (Fairfax County Mar. 6, 2009).
CASE NOTES
Presumption of loss. —
Since the evidence showed that after execution, the decedent’s will was not in possession of the decedent and not accessible to him, the presumption of loss arose. Because the court was not convinced by clear and convincing evidence that this presumption of loss had been rebutted and that the will was revoked by the decedent, the court found that the conformed copy of the will should be admitted to probate. In re Estate of Brown, 87 Va. Cir. 353, 2013 Va. Cir. LEXIS 139 (Fairfax County Dec. 20, 2013).
§ 64.2-404. Writings intended as wills.
- Although a document, or a writing added upon a document, was not executed in compliance with § 64.2-403 , the document or writing shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
- The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator’s signature, except in circumstances where two persons mistakenly sign each other’s will, or a person signs the self-proving certificate to a will instead of signing the will itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent’s date of death and in which all interested persons are made parties.
History. 2007, c. 538, § 64.1-49.1; 2012, c. 614.
Law Review.
For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).
For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).
For article, “Irresolute Testators, Clear and Convincing Wills Law,” see 73 Wash. & Lee L. Rev. 3 (2016).
Research References.
Virginia Forms (Matthew Bender). No. 5-1401 Complaint to Establish Lost Will; No. 6-1001 Complaint to Impeach a Will, et seq.; No. 15-102 Simple Will Giving Entire Estate to One Beneficiary, et seq.; No. 15-431 Order of Probate of Will and Codicil, et seq.
CASE NOTES
Application. —
Son was entitled to attempt to establish a 2005 writing made by his mother as a subsequent, superseding holographic will because the mother did not die until September 2008, and a determination whether the writing offered for probate was a valid will should have applied the law in effect at date of the maker’s death, including § 64.1-49.1, which became effective in 2007. Schilling v. Schilling, 280 Va. 146 , 695 S.E.2d 181, 2010 Va. LEXIS 59 (2010) (decided under prior law).
Lack of testamentary intent. —
Decedent did not execute the holographic writing with testamentary intent because, if he intended and believed the writing to be an effective codicil, it was reasonable to conclude that he would have mentioned it in his notes to his brother, who was the executor of the decedent’s estate; and the decedent’s failure to do so, along with his failure to sign the writing in the same manner as his will, suggested that he did not consider the writing to have binding testamentary effect. Irving v. Divito, 294 Va. 465 , 807 S.E.2d 741, 2017 Va. LEXIS 174 (2017).
CIRCUIT COURT OPINIONS
Applicability. —
This section applied to a document that petitioners sought to admit as the decedent’s will where the document was neither wholly in the decedent’s handwriting nor signed by two witnesses, thus, it did not meet the requirements of § 64.2-403 , and § 64.2-404 served to relieve strict compliance with the witness requirements of § 64.2-403 . Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).
Limitations met. —
Limitations under subsection B of § 64.2-404 were satisfied where the decedent had signed the document at issue, and all three witnesses testified that they witnessed the decedent sign the document. Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).
Presumption of loss. —
Plaintiff’s exhibit 1, a photocopy of the decedent’s 2011 will, was admitted to probate; the presumption of loss applied because the original was left on the kitchen table, and there was no credible evidence to rebut the presumption of loss. Palesis v. Hlouverakis, 88 Va. Cir. 293, 2014 Va. Cir. LEXIS 75 (Henrico County May 29, 2014).
Codicil requirements met. —
Although testator’s letter that purported to be a codicil to will was not a valid codicil under Va. Code Ann. § 64.2-403 because it was not signed by the testator, it was a valid codicil under Va. Code Ann. § 64.2-404 because there was clear and convincing evidence that the testator intended the writing to constitute a codicil. In re Estate of Asmuth, 2021 Va. Cir. LEXIS 350 (Fairfax County Dec. 7, 2021).
Codicil requirements not found. —
Writing did not comply with statutory requirements in that it was not manifest that the name on the writing was intended as the decedent’s signature; the writing, which removed the decedent’s son from the will entirely, was handwritten in cursive on a tab-divider in a binder, the writing established a thought of the decedent to make a change to his will and was tentative in nature, and thus testamentary intent to create a codicil had not been established by clear and convincing evidence. Irving v. Divito, 94 Va. Cir. 226, 2016 Va. Cir. LEXIS 143 (Chesapeake Sept. 2, 2016), aff'd, 294 Va. 465 , 807 S.E.2d 741, 2017 Va. LEXIS 174 (2017).
Testamentary intent established. —
Clear and convincing evidence established that the decedent intended the document to constitute her will where even though it lacked a dispositive provision, its language clearly showed that intent, the testimony showed that decedent intended to revoke her prior estate plan. Woodle v. Woodle, 104 Va. Cir. 440, 2017 Va. Cir. LEXIS 612 (Virginia Beach Aug. 3, 2017).
§ 64.2-404.1. Reformation of will to correct mistakes or achieve decedent’s tax objectives.
- The court may reform the terms of a decedent’s will, or any codicil thereto, even if unambiguous, to conform the terms to the decedent’s intention if it is proved by clear and convincing evidence that both the decedent’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.
- If shown by clear and convincing evidence, the court may modify the terms of a decedent’s will to achieve the decedent’s tax objectives in a manner that is not contrary to the decedent’s probable intention.
- Notice must be given and a person may represent and bind another person in proceedings under this section to the same extent that a person may represent and bind another person in proceedings brought under § 64.2-733 or 64.2-734 relating to trusts.
- The remedies granted by this section are available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent’s date of death and in which all interested persons are made parties.
- This section applies to all wills and codicils regardless of the date of their execution and all judicial proceedings regardless of when commenced, except that this section shall not apply to any judicial proceeding commenced before July 1, 2018, if the court finds that its application would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of the parties.
History. 2018, c. 44.
Law Review.
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
§ 64.2-405. Interested persons as competent witnesses.
No person is incompetent to testify for or against a will solely by reason of any interest he possesses in the will or the estate of the testator.
History. Code 1950, §§ 64-53, 64-54; 1962, c. 338; 1968, c. 656, § 64.1-51; 2012, c. 614.
CASE NOTES
An executor is competent as an attesting witness to a will. Salyers v. Salyers, 186 Va. 927 , 45 S.E.2d 481, 1947 Va. LEXIS 211 (1947) (decided under prior law).
Creditors and legatees are now competent witnesses. —
The law with reference to the competency of legatees and devisees as attesting witnesses was changed by the revision of 1919 so as to relieve them of the forfeiture provided by § 2529 of the Code of 1887. Epes' Adm'r v. Hardaway, 135 Va. 80 , 115 S.E. 712 , 1923 Va. LEXIS 3 (1923) (decided under prior law); Salyers v. Salyers, 186 Va. 927 , 45 S.E.2d 481, 1947 Va. LEXIS 211 (1947) (decided under prior law).
CIRCUIT COURT OPINIONS
Joint testators not competent to serve as witnesses to their own joint will. —
Trial court rejected a surviving partner’s claim that the surviving partner and a deceased partner made a valid joint will when they signed an agreement which gave the deceased partner’s interest in a warehouse to the surviving partner because the partners could not serve as witnesses to their own joint will. Quenza v. Baum, 62 Va. Cir. 284, 2003 Va. Cir. LEXIS 295 (Norfolk July 14, 2003) (decided under prior law).
Beneficiary permitted to witness will. —
Clerk was directed to admit the decedent’s November 4, 2017, will to probate because the will was entirely in the handwriting of the decedent; the will met all the requirements for due execution of a will as no form of attestation was required, and the decedent wrote and signed the will in the presence of two witnesses who immediately signed the will in the presence of each other; it was irrelevant that the proponent of the will was both a witness and beneficiary to the will; and the will clearly demonstrated testamentary intent to leave the property to the proponent of the will when the decedent passed away and could not be interpreted as making a present gift, a draft, a memorandum, or instruction to an attorney for a future will. Will of Brockman, 103 Va. Cir. 153, 2019 Va. Cir. LEXIS 457 (Amherst County Sept. 27, 2019).
§ 64.2-406. Repealed by Acts 2016, c. 266, cl. 2.
Editor’s note.
Former § 64.2-406 , pertaining to when exercise of power of appointment by will valid, derived from Code 1950, § 64-52; 1968, c. 656, § 64.1-50; 2012, c. 614.
§ 64.2-407. Will of personal estate of nonresidents.
Notwithstanding the provisions of § 64.2-403 , the will of a person domiciled out of the Commonwealth at the time of his death shall be valid as to personal property in the Commonwealth if the will is executed according to the law of the state or country in which the person was so domiciled.
History. Code 1950, § 64-55; 1968, c. 656, § 64.1-53; 2012, c. 614; 2016, c. 266.
The 2016 amendments.
The 2016 amendment by c. 266 substituted “§ 64.2-403 ” for “§§ 64.2-403 and 64.2-406 .”
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 1 Introductory. § 1.04 Conflict of Laws. Cox.
CASE NOTES
In Virginia the policy of liberality and relaxation in favor of soldiers and seamen with respect to the making of wills of personal property finds legislative recognition in this section. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 , 1921 Va. LEXIS 24 (1921) (decided under prior law).
Nuncupative will is ineffectual as to real estate. —
A nuncupative will is of no effect in law in relation to the testator’s real estate, or the profits to accrue therefrom. But where, in the lifetime of the testator, a division was made between him and his two brothers of their father’s real estate, which was acted upon by him in his lifetime by taking possession of the part allotted to him, and was also confirmed and ratified by him at the time of making his nuncupative will, the validity of such division was recognized in a court of equity. Page v. Page, 41 Va. (2 Rob.) 424, 1843 Va. LEXIS 42 (1843) (decided under prior law).
Letters. —
The lower court did not err in according testamentary effect to a soldier’s letter written in France in direct contemplation of the fact that the writer might not survive the war, containing a definite expression of the disposition which in that event he desired to have made of whatever property he might leave behind, notwithstanding that the testator in all probability did not think he was writing a will. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 , 1921 Va. LEXIS 24 (1921) (decided under prior law).
§ 64.2-408. Presumption of formal execution of wills made by persons in military service; will of personal estate of persons in military service and seamen.
- A will executed by a person while in the military service of the United States, as that term is defined in the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.), that purports on its face to be witnessed as required by § 64.2-403 , upon proof of the signature of the testator by any two disinterested witnesses, shall be presumed, in the absence of evidence to the contrary, to have been executed in accordance with the requirements of that section and shall be admitted to probate as if the formalities of execution were proved.
- Notwithstanding the provisions of § 64.2-403 , a person while in the military service of the United States, or a seaman or mariner while at sea, may dispose of his personal estate in the same manner as he might heretofore have done.
History. Code 1950, §§ 64-55, 64-56; 1968, c. 656, §§ 64.1-53, 64.1-54; 2012, c. 614; 2016, c. 266.
Editor’s note.
At the direction of the Virginia Code Commission, “50 U.S.C. § 3901 et seq.” was substituted for “50 U.S.C. app. § 501 et seq.” to conform to the reclassification of Title 50 U.S.C. Appendix.
The 2016 amendments.
The 2016 amendment by c. 266 substituted “§ 64.2-403 ” for “§§ 64.2-403 and 64.2-406 ” in subsection B.
CASE NOTES
In Virginia the policy of liberality and relaxation in favor of soldiers and seamen with respect to the making of wills of personal property finds legislative recognition in this section. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 , 1921 Va. LEXIS 24 (1921) (decided under prior law).
Nuncupative will is ineffectual as to real estate. —
A nuncupative will is of no effect in law in relation to the testator’s real estate, or the profits to accrue therefrom. But where, in the lifetime of the testator, a division was made between him and his two brothers of their father’s real estate, which was acted upon by him in his lifetime by taking possession of the part allotted to him, and was also confirmed and ratified by him at the time of making his nuncupative will, the validity of such division was recognized in a court of equity. Page v. Page, 41 Va. (2 Rob.) 424, 1843 Va. LEXIS 42 (1843) (decided under prior law).
Letters. —
The lower court did not err in according testamentary effect to a soldier’s letter written in France in direct contemplation of the fact that the writer might not survive the war, containing a definite expression of the disposition which in that event he desired to have made of whatever property he might leave behind, notwithstanding that the testator in all probability did not think he was writing a will. Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 , 1921 Va. LEXIS 24 (1921) (decided under prior law).
§ 64.2-409. Wills of living persons lodged for safekeeping with clerks of certain courts.
- A person or his attorney may, during the person’s lifetime, lodge for safekeeping with the clerk of the circuit court serving the jurisdiction where the person resides any will executed by such person. The clerk shall receive such will and give the person lodging it a receipt. The clerk shall (i) place the will in an envelope and seal it securely, (ii) number the envelope and endorse upon it the name of the testator and the date on which it was lodged, and (iii) index the same alphabetically by name of both the testator and the executor then qualified in a permanent index that shows the number and date such will was deposited.
- An attorney-at-law, bank, or trust company that has held a will for safekeeping for a client for at least seven years and that has no knowledge of whether the client is alive or dead after such time may lodge such will with the clerk as provided in subsection A.
- The clerk shall carefully preserve the envelope containing the will unopened until it is returned to the testator or his nominee in the testator’s lifetime upon request of the testator or his nominee in writing or until the death of the testator. If such will is returned during the testator’s lifetime and is later returned to the clerk, it shall be considered to be a separate lodging under the provisions of this section.
- Upon notice of the testator’s death, the clerk shall open the will and deliver the same to any person entitled to offer it for probate.
- The clerk shall charge a fee of $5 for lodging, indexing, and preserving a will pursuant to this section.
- The provisions of this section are applicable only to the clerk’s office of a court where the judge or judges of such court have entered an order authorizing the use of the clerk’s office for such purpose.
- The clerk may destroy any will that has been lodged in his office for safekeeping under this section for 100 years or more.
History. Code 1950, § 64-57.1; 1958, c. 392; 1964, c. 390; 1968, c. 656, § 64.1-56; 1970, c. 567; 2012, c. 614; 2019, c. 529; 2020, cc. 68, 589, 1063.
Editor’s note.
Acts 2020, c. 1063, cl. 2 provides: “That for any clerk of a circuit court that does not have an electronic program capable of indexing wills by the name of both the testator and the executor as of July 1, 2020, the provisions of this act shall become effective on July 1, 2022.”
Acts 2022, c. 109, cl. 1 provides: “§ 1. Pursuant to an order of the Rockingham Circuit Court in accordance with subsection F of § 64.2-409 of the Code of Virginia authorizing the clerk to lodge wills for safekeeping, the clerk of the Rockingham Circuit Court may establish a pilot project for an index of wills lodged for safekeeping, with a searchable database available to the public. Such database shall protect the privacy of information contained in wills so lodged with the clerk in accordance with § 17.1-293 of the Code of Virginia. The clerk shall pay all costs associated with the pilot project. The clerk shall make a written report of findings and recommendations regarding the pilot project to the Senate Committee on the Judiciary and the House Committee for Courts of Justice no later than November 1, 2026.”
The 2019 amendments.
The 2019 amendment by c. 529 added subsection G.
The 2020 amendments.
The 2020 amendments by cc. 68 and 589 are identical, and substituted “$5” for “$2” in subsection E.
The 2020 amendment by c. 1063, inserted “by name of both the testator and the executor then qualified” in subsection A.
Article 2. Revocation and Effect.
§ 64.2-410. Revocation of wills generally.
- 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.
- If a testator executes a will in the manner required by law or other writing in the manner in which a will is required to be executed that expressly revokes a former will, such former will, including any codicil thereto, is void and of no effect.
- If a testator executes a will or codicil in the manner required by law that (i) expressly revokes a part, but not all, of a former will or codicil or (ii) contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil is effective upon the death of the testator.
History. Code 1950, § 64-59; 1968, c. 656, § 64.1-58.1; 1985, c. 431; 2012, c. 614.
Law Review.
For survey of Virginia law on wills, trusts and estates for the year 1972-1973, see 59 Va. L. Rev. 1621 (1973).
for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974).
for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976).
for the year 1979-1980, see 67 Va. L. Rev. 369 (1981).
for the year 1985, see 19 U. Rich. L. Rev. 779 (1985).
For note, “An Analysis of the Virginia Wills Act Formalities and the Need for a Dispensing Power Statute in Virginia,” see 50 Wash. & Lee L. Rev. 1145 (1993).
Research References.
Virginia Forms (Matthew Bender). No. 5-1401 Complaint to Establish Lost Will, et seq.; No. 15-107 Codicil; No. 15-201 Preamble to Will.
CASE NOTES
Analysis
- I. General Consideration.
- II. Destruction or Cancellation of Will.
- III. Revocation By Subsequent Will, Codicil or Writing.
I.General Consideration.
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
The General Assembly has precisely defined the several methods by which revocation may be accomplished. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
Section must be complied with. —
In order that the revocation of a will may be valid the provisions of this section must be followed. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881, 1940 Va. LEXIS 165 (1940); Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609, 1953 Va. LEXIS 148 (1953).
A commission of lunacy against a testator is not a revocation of a will which he made when of sound mind. Hughes v. Hughes' Ex'r, 16 Va. (2 Munf) 209, 1811 Va. LEXIS 32 (1811).
Death of a husband was no revocation of the will of his wife validly made in his lifetime. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21, 1872 Va. LEXIS 2 (1872).
In the absence of contract, joint wills are revocable by either testator at pleasure. Williams v. Williams, 123 Va. 643 , 96 S.E. 749 , 1918 Va. LEXIS 56 (1918).
Revocation based on erroneous advice. —
The fact that a testator had been erroneously advised on a point, and thereby induced to revoke his will, is no ground for avoiding the revocation. Skipwith v. Cabell's Ex'r, 60 Va. (19 Gratt.) 758, 1870 Va. LEXIS 19 (1870).
Revocation by enactment of law. —
The fact that a will is ambulatory and speaks as of the maker’s death does not preclude the General Assembly from enacting laws which revoke and declare a nullity an existing will upon the occurrence of a specified event such as marriage. After such a revocation, unless the will is revived in a manner prescribed by law, the will never speaks. Wilson v. Francis, 208 Va. 83 , 155 S.E.2d 49, 1967 Va. LEXIS 187 (1967).
Revocation by implication is not favored. Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609, 1953 Va. LEXIS 148 (1953).
II.Destruction or Cancellation of Will.
Cancellation requires physical defacement or mutilation. —
The revocation of a will by cancellation, within the meaning of this section, contemplates marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to revoke. If written words are used for the purpose, they must be so placed as to physically affect the written portion of the will, not merely on blank parts of the paper on which the will is written. If the writing intended to be the act of cancelling does not mutilate, or erase, or deface, or otherwise physically come in contact with any part of a written word of the will, it cannot be given any greater weight than a similar writing on a separate sheet of paper, which identifies the will referred to just as definitely as does the writing on the back. If a will may be revoked by writing on the back, separable from the will, it may be done by a writing not on the will, and this the statute forbids. Thompson v. Royall, 163 Va. 492 , 175 S.E. 748 , 1934 Va. LEXIS 197 (1934); Franklin v. McLean, 192 Va. 684 , 66 S.E.2d 504, 1951 Va. LEXIS 216 (1951).
Revocation of a will by cancellation, within the meaning of former § 64.1-58, contemplated marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to revoke. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115, 1980 Va. LEXIS 216 (1980).
Revocation by mutilation can be accomplished only when the act of mutilation is performed in accordance with this section. If ratification of mutilation by accident or by the act of some person outside the presence of the testator or without his direction is to become one of the methods by which a properly executed will may be revoked, it must remain for the legislature to say so. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
Act and intent are essential to revocation. —
To effect revocation of a duly executed will, in any of the methods prescribed by this section, two things are necessary: (1) the doing of one of the acts specified, (2) accompanied by the intent to revoke—the animus revocandi. Proof of either, without proof of the other, is insufficient. Thompson v. Royall, 163 Va. 492 , 175 S.E. 748 , 1934 Va. LEXIS 197 (1934).
Revocations effective if support cancellation inference. —
Whenever any of the statutory methods are employed by the testator with an intent to revoke, the changes are effective, even though made after execution of a duly attested will, provided they sufficiently support an inference of cancellation. Goriczynski v. Poston, 248 Va. 271 , 448 S.E.2d 423, 1994 Va. LEXIS 112 (1994).
Mere writing upon will is not cancellation. —
The great weight of authority is to the effect that the mere writing upon a will which does not in anywise physically obliterate or cancel the same is insufficient to work a destruction of a will by cancellation, even though the writing may express an intention to revoke and cancel. This appears to be the better rule. Thompson v. Royall, 163 Va. 492 , 175 S.E. 748 , 1934 Va. LEXIS 197 (1934).
Intent to revoke by mutilation can, under certain carefully defined circumstances, be presumed. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
Pencil marks presumed made with intent to revoke. —
Contestants brought suit to set aside a paper writing which had been admitted to probate ex parte, as the last will of decedent, on the ground that it had been found among decedent’s effects in her possession in a canceled and mutilated condition. The proponents submitted evidence that deceased a year before her death while sick in a hospital requested her attorney to secure and care for certain papers then located in her home. He found among the papers the purported will, dated about seventeen years before, written and signed wholly in deceased’s handwriting in ink, but which had pencil lines extending through each and every line, including the signature. From those facts it was presumed that the pencil marks were made by decedent with the intention of revoking the instrument in a manner required by this section. Since appellants offered no evidence to rebut that presumption, it prevailed. Franklin v. McLean, 192 Va. 684 , 66 S.E.2d 504, 1951 Va. LEXIS 216 (1951).
Burden of rebutting presumption. —
Whatever presumption arises from acts of cancellation or mutilation, it is rebuttable, but the burden of the rebuttal rests upon the proponent. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115, 1980 Va. LEXIS 216 (1980).
The presumption casts upon proponents of a will the burden of producing evidence to the contrary. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
Evidence to the contrary need not be testimonial evidence and may be physical and circumstantial. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
Partial obliteration is evidence to the contrary. —
Had obliteration of the will been total, the presumption that it was an act “performed by the testator with the intention of revoking” would be strong. Since total obliteration could have been achieved as readily as partial obliteration, partial obliteration is evidence to the contrary. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973); Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115, 1980 Va. LEXIS 216 (1980).
Partial mutilation. —
A mutilated will seldom is one that is completely destroyed. There usually remain words, phrases, paragraphs and even pages that are legible and unmarked. The mere fact that the mutilation is only partial does not of itself satisfy or neutralize the presumption of a revocation. The presumption remains until it is overcome. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115, 1980 Va. LEXIS 216 (1980).
Tampering with will by cutting, tearing or burning. —
The presumption of revocation does not apply only where there is a complete destruction, obliteration or cancellation of a will; it also applies to a will which has been tampered with in some manner by cutting, tearing or burning. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115, 1980 Va. LEXIS 216 (1980).
When the presumption is neutralized, the burden of proving revocation falls upon contestants. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
Former § 64.1-58 permitted partial revocation of a formally attested will through cancellation by the testator, with intent to partially revoke. Etgen v. Corboy, 230 Va. 413 , 337 S.E.2d 286, 1985 Va. LEXIS 295 (1985).
Cancellation of certain words in will. —
Pursuant to this section, where a paper offered for probate has been proved to have been properly executed as a will, but certain words in it have been canceled since its execution, the whole paper, including the canceled words, is to be treated by the probate court as the last will and testament of the deceased, in the absence of some evidence that the cancellation was done by the deceased or by some person in his presence and by his direction, which would be sufficient to show that fact, or that the instrument was found after the testator’s death among his repositories in the mutilated condition it was in when offered for probate, and under such circumstances that the fact of revocation might to the extent of the cancellation be presumed. Harris v. Wyatt, 113 Va. 254 , 74 S.E. 189 , 1912 Va. LEXIS 31 (1912).
Presumption of intent to revoke holograph will. —
See Wilkes v. Wilkes, 115 Va. 886 , 80 S.E. 745 , 1914 Va. LEXIS 145 (1914) and Franklin v. McLean, 192 Va. 684 , 66 S.E.2d 504 (1951).
Direction to destroy not carried out is insufficient. —
Although a testator has directed his will to be destroyed, and believes that it has been destroyed as requested, yet if it is not in fact destroyed, such direction and belief will not operate as a revocation of the will, even in relation to the personal estate. Malone's Adm'r v. Hobbs, 40 Va. (1 Rob.) 346, 1842 Va. LEXIS 34 (1842); Boyd v. Cook, 30 Va. (3 Leigh) 32, 1831 Va. LEXIS 33 (1831).
Presumption when will in custody of testator. —
It is generally agreed that if a will produced for probate, which is shown to have been in the custody of the testator after its execution, was found among the testator’s effects after his death, in such a state of mutilation, obliteration or cancellation as represents a sufficient act of revocation within the meaning of the applicable statute, it will be presumed, in the absence of evidence to the contrary, that such act was performed by the testator with the intention of revoking the instrument. Jessup v. Jessup, 221 Va. 61 , 267 S.E.2d 115, 1980 Va. LEXIS 216 (1980).
Presumption of revocation from disappearance of will. —
Where it appears that a person has made a will which cannot be found after his death, the presumption is that it was destroyed by the testator animo revocandi. This is especially true where the will is traced to his possession, and never traced out of it. Shacklett v. Roller, 97 Va. 639 , 34 S.E. 492 , 1899 Va. LEXIS 79 (1899) (see also Malone’s Adm’r v. Hobbs, 40 Va. (1 Rob.) 346, 39 Am. Dec. 263 (1842); Appling v. Eades’s Adm’r, 42 Va. (1 Gratt.) 286 (1844); Jackson v. Hewlett, 114 Va. 573 , 77 S.E. 518 (1913)).
A will known to have been in the testator’s possession, and not found after his death, is presumed to have been intentionally destroyed by him. Wheat v. Wheat, 3 Va. L. Reg. 177.
Where an executed will in the testator’s custody cannot be found after his death there is a presumption that it was destroyed by the testator animo revocandi. Harris v. Harris, 216 Va. 716 , 222 S.E.2d 543, 1976 Va. LEXIS 191 (1976).
Is stronger than that from mutilation of will. —
Nonexistence of a will known to have existed once is a stronger predicate for a presumption of revocation than the existence of a will found in testator’s personal effects, even if mutilated. McKenzie v. Francis, 214 Va. 104 , 197 S.E.2d 221, 1973 Va. LEXIS 263 (1973).
But is merely prima facie. —
This presumption, however, is only prima facie, and may be rebutted, but the burden is upon those who seek to establish such an instrument to assign and prove some other cause for its disappearance. Shacklett v. Roller, 97 Va. 639 , 34 S.E. 492 , 1899 Va. LEXIS 79 (1899); Jackson v. Hewlett, 114 Va. 573 , 77 S.E. 518 , 1913 Va. LEXIS 119 (1913); Harris v. Harris, 216 Va. 716 , 222 S.E.2d 543, 1976 Va. LEXIS 191 (1976).
Presumption where missing will was not accessible to testator. —
When due execution is established, and it is shown that the will was not thereafter in the possession of the testator or accessible to him, no presumption of revocation arises on failure to find it, but rather a presumption that it was lost arises and the burden of showing revocation is on him who asserts it. Harris v. Harris, 216 Va. 716 , 222 S.E.2d 543, 1976 Va. LEXIS 191 (1976).
Procedure where duplicate originals, one of which is altered, are found. —
Where duplicate originals of a formally attested will are in the possession of the testator from the time of execution until discovery among his effects after death and one version is altered while the other is in its original condition, then neither will is entitled to a presumption that it is the true will of the testator. In such a situation, the proponents of the different versions of the will must prove that their version is the true will. Etgen v. Corboy, 230 Va. 413 , 337 S.E.2d 286, 1985 Va. LEXIS 295 (1985).
Evidence supported cancellation. —
The physical act of drawing lines through the typed provisions of will article unambiguously supported an inference of cancellation. Furthermore, there was the unrebutted presumption that the testator made these changes with the intent to revoke. When, as here, the will presented for probate had been in the testator’s custody after execution and was found among his effects at death with provisions marked through that constitute a sufficient act of cancellation within the meaning of the applicable statute, a rebuttable presumption arises that such marks were made with the intention of revoking the affected provisions. In addition, even though the marginal notes were of no legal effect, they did support the conclusion drawn from an examination of the document left by the testator that he meant a partial, not complete, revocation of the will. Goriczynski v. Poston, 248 Va. 271 , 448 S.E.2d 423, 1994 Va. LEXIS 112 (1994).
III.Revocation By Subsequent Will, Codicil or Writing.
Due execution is essential. —
Where a writing containing a clause expressly revoking former wills is improperly executed, or the testator is lacking in testamentary capacity, the writing fails altogether and in toto. The disposing part and the revoking part of the will are both ineffectual and fall together. Barksdale v. Barksdale, 39 Va. (12 Leigh) 535, 1842 Va. LEXIS 6 (1842).
“Legend of revocation” on holographic will. —
In a suit to declare a purported holographic will null and void because of a “legend of revocation” which appeared in a blank space between the date of the will and the attestation clause and above the testator’s signature, two attesting witnesses testified that the “legend of revocation” was not on the will at the time they signed it. The entire will, including the “legend of revocation,” with the exception of the signature of the two attesting witnesses, was in the handwriting of the testator. It was held that for the revocation to be valid, it was not necessary that the will be signed again if the name of the testator remained in such manner that it was manifestly intended by him as and for his signature to the revocation. Moyers v. Gregory, 175 Va. 230 , 7 S.E.2d 881, 1940 Va. LEXIS 165 (1940).
Prior will revoked only insofar as inconsistent. —
A prior will was revoked by a subsequent will only to the extent that the former was plainly inconsistent with the latter. Gordon v. Whitlock, 92 Va. 723 , 24 S.E. 342 , 1896 Va. LEXIS 35 (1896).
An earlier will is ordinarily displaced by a later testamentary instrument only insofar as it is clearly irreconcilable with it. Bradshaw v. Bangley, 194 Va. 794 , 75 S.E.2d 609, 1953 Va. LEXIS 148 (1953).
A former will is not revoked in whole or in part by a later inconsistent will unless there is, in fact, such conflict between the two as necessarily to have the effect of supplanting the former by the latter, in whole or in part, and thus preclude the former from operating as a will upon the subject matter at the death of the maker. Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144, 1958 Va. LEXIS 198 (1958).
Doctrine of dependent relative revocation. —
Under the doctrine of dependent relative revocation, if a testator cancels or destroys a will, or does any other act to vitiate it, with the present intention of making a new one immediately, and the new will is not made, or if made fails of effect because not properly executed, or for any other reason, then the old will, having been conditionally revoked, still stands, on the theory that if the testator is not able to carry out his whole testamentary intent in making the new will, or in making changes in the old one, then it is to be presumed that he prefers his old will to intestacy; that the revocation was conditioned upon the new testamentary disposition being effective. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950).
Doctrine is recognized in Virginia. —
The doctrine of dependent relative revocation is clearly recognized in Barksdale v. Barksdale, 39 Va. (12 Leigh) 535 (1842). No later Virginia decision has modified the authority of that case, or questioned the soundness of the principles upon which it was decided—unless the apparent ignoring of the principles in the first decision of Hugo v. Clark, 125 Va. 126 , 99 S.E. 521 (1919)—be considered contra. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950).
Lost revoking will may be established. —
Where a will which revokes a former will has been lost or destroyed and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will which it revokes. Hugo v. Clark, 125 Va. 126 , 99 S.E. 521 , 1919 Va. LEXIS 13 (1919).
But there is no presumption that lost will contained revocation clause. —
Where it is proved that a will was executed but afterwards lost or destroyed by the testator, or some other person, without an intention to revoke it, it will not, in the absence of proof, be presumed that it contained an express clause of revocation. In such case, an existing prior will is only revoked by the subsequent lost will to the extent that the provisions of the lost will are irreconcilably inconsistent. It is not necessary for the contents of the lost will to be proved, if enough be proved to show that it revoked the former will. Hylton v. Hylton, 42 Va. (1 Gratt.) 161, 1844 Va. LEXIS 25 (1844).
Alterations and deletions by another to clarify will; alleged later will not revoking. —
Testatrix drew up a valid holographic will without assistance, but later sought the aid of a friend in correcting its literary form. The friend testified that in the presence of testatrix and with her consent, she undertook to make certain alterations and deletions on the paper for the sole purpose of clarifying the document as to punctuation, grammar and phraseology, and that testatrix, insistent that she make her own will and not have it made for her, took the paper away with the intention of making a copy which would be wholly in her handwriting. The witness further related that testatrix had subsequently shown her a later will beginning with a clause of revocation, but this testimony was not convincing and a thorough search did not disclose any other testamentary paper of any kind. It was contended that the will was invalid, because not wholly in testatrix’s handwriting, but that if it were valid, it had been revoked. There was no merit in either contention. It was clear that the changes in the will were made for one of two purposes, either to polish and clarify and make it intelligible, without changing its meaning, or as a basis to be used by testatrix in making a new will. If the first was the case, the will was not annulled for so unimportant a cause, and in the second event, it was preserved under the doctrine of dependent relative revocation. Bell v. Timmins, 190 Va. 648 , 58 S.E.2d 55, 1950 Va. LEXIS 158 (1950).
Effect of revocation of subsequent inconsistent will. —
If a subsequent inconsistent will has been destroyed by the maker animo revocandi, then no conflict arises or can arise between it and a prior will, for wills are ambulatory and operate only upon and by reason of death. Thus wills which did not expressly revoke prior wills, and which were destroyed animo revocandi, never constituted wills under this section, and never revoked the earlier wills. Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144, 1958 Va. LEXIS 198 (1958) (overruling Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 (1921)).
The burden of proving revocation of a will is upon the contestant. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136, 1974 Va. LEXIS 180 (1974).
Burden of proof not carried. —
Language used in letter merely stating that another document had revocative effect, the other document referred to not having been established, contestant did not bear the burden of proof required of him to show revocation. Mumaw v. Mumaw, 214 Va. 573 , 203 S.E.2d 136, 1974 Va. LEXIS 180 (1974).
Sufficiency of evidence. —
Evidence, that a subsequent will had been made, and afterwards stolen from the testator, without any proof of its contents, and proof of his declarations after the will was stolen that he would die intestate and leave his estate to be distributed according to the statute, was not sufficient evidence of a revocation of a former will. Hylton v. Hylton, 42 Va. (1 Gratt.) 161, 1844 Va. LEXIS 25 (1844).
The effect of revocation by codicil of testamentary provision for one in a class, was not to create intestacy as to that share, but to take that devisee out of the class and leave the residuum to go to the other members of the class. Saunders v. Saunders, 109 Va. 191 , 63 S.E. 410 , 1909 Va. LEXIS 20 (1909).
Testamentary intent to revoke not found. —
The language of the letter, while showing testator’s desire that his daughters share equally in his estate, did not contain any evidence that he intended that letter to operate as his last will or as a codicil to his will. Rather, the evidence showed that testator characterized his will as “out of date” but believed that it would be effective. Under these facts, the court could not conclude that the April 1992 letter demonstrated the testamentary intent to revoke portions of the 1982 will and to substitute a different disposition of the testator’s property. Wolfe v. Wolfe, 248 Va. 359 , 448 S.E.2d 408, 1994 Va. LEXIS 127 (1994).
CIRCUIT COURT OPINIONS
Editor’s note. The cases below were decided under former Title 64.1 and prior law.
Revocation by subsequent codicil. —
Second codicil did not revoke an earlier holographic codicil where the second codicil did not expressly use the term “revocation,” but simply amended a single article of the original will, where the second codicil specifically republished the will and the first codicil, subject to the modification set forth in the second codicil, and where the earlier holographic codicil was not so inconsistent with either the second codicil or the original will as to make the instruments incapable of standing together. Eubank v. Eubank, 68 Va. Cir. 33, 2005 Va. Cir. LEXIS 92 (Amherst County Feb. 22, 2005).
Inconsistent codicil. —
In distributing property under the decedent’s will and four codicils, the court held that none of the codicils revoked the will, but with regard to intangible personal property, codicil four was inconsistent with the will and earlier codicils and therefore prevailed. In re Estate of Parsons, 65 Va. Cir. 295, 2004 Va. Cir. LEXIS 277 (Richmond July 30, 2004).
Gift found revoked. —
Executor was instructed that: (1) a decedent revoked her testamentary gift to a residuary beneficiary by obliterating his name on her will with an opaque correction fluid, (2) the unrevoked portions of the will remained in effect, and (3) under subsection B of § 64.1-65.1 and to avoid a partial intestacy, the residue was to be divided proportionally between the remaining two residuary beneficiaries as: (i) the decedent devised the residue of her estate to two or more persons, (ii) nothing in the will suggested that the decedent had an intention contrary to the provisions of § 64.1-65.1, and (iii) it was settled law in Virginia that a gift that had been revoked was one that failed for any reason. Estate of Doughtie, 70 Va. Cir. 329, 2006 Va. Cir. LEXIS 48 (Roanoke Mar. 27, 2006).
§ 64.2-411. Revival of wills after revocation.
Any will or codicil, or any part thereof that has been revoked pursuant to § 64.2-410 shall not be revived unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to the extent that the testator’s intent to revive the will or codicil is shown.
History. Code 1950, § 64-60; 1968, c. 656, § 64.1-60; 1985, c. 431; 2012, c. 614.
Law Review.
For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).
CASE NOTES
Editor’s note.
The cases below were decided under former Title 64.1 and prior law.
Destruction of subsequent inconsistent will containing no express revocation. —
Wills were not revoked by subsequent inconsistent holographic writings, containing no express revocation of prior wills, where the subsequent writings, though testamentary in character, had been destroyed by testatrix animo revocandi. Such writings were ambulatory until death, and having been revoked prior to death they never constituted wills within the intent of that portion of former § 64.1-58 (see now § 64.1-58.1) which provides for revocation by subsequent will or codicil, and their execution did not revoke the earlier wills. Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144 (1958), overruling, Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 (1921).
Section states common law as to revival by codicil. —
This section merely adopted the settled rule at common law as to the revival of wills by codicil, and the concluding provision, that a revoked will shall be revived “only to the extent to which an intention to revive the same is shown,” was merely meant to provide a statutory rule that a codicil shall not operate, proprio vigore, to revive a revoked will, where the intention so to do does not appear on the face of the will, or otherwise, either expressly or impliedly. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
Codicil must show testamentary intent. —
A paper writing, which the testatrix referred to as a codicil to a prior will, but which made no disposition of property, and directed no act of a testamentary nature, did not operate to revive the prior will to which it referred. Delly v. Seaboard Citizens Nat'l Bank, 202 Va. 764 , 120 S.E.2d 457, 1961 Va. LEXIS 176 (1961).
Republication implied from codicil referring to will. —
Where the testator in a codicil refers to a will and gives sufficient demonstration that when making the codicil he considered the will as his will, a republication of the will may be implied. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922); Triplett v. Triplett, 161 Va. 906 , 172 S.E. 162 , 1934 Va. LEXIS 313 (1934).
Will revoked by birth of children revived by codicil. —
A will revoked by the birth of children was revived under this section by a codicil admitted to be of such nature as to have effected revival prior to the enactment of this section. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
Due execution is required. —
In order that a codicil may establish a will not duly executed and be a republication thereof, its execution must be such as would have sufficed for the will, if the will had been so executed. See examples in this case. Gibson v. Gibson, 69 Va. (28 Gratt.) 44, 1877 Va. LEXIS 52 (1877).
No particular words are necessary to be used in a codicil to effect a republication of the will to which it is annexed. It is only necessary that it shall appear that the testator referred to and considered the paper as his will at the time he executed the codicil; where this so appears, even though the codicil refers to personal property only, it may operate as a republication, as to realty, even so as to pass after-acquired lands. Corr v. Porter, 74 Va. (33 Gratt.) 278, 1880 Va. LEXIS 41 (1880).
Codicil need not show knowledge by testator of revocation of will. —
It is not necessary to a revival of a revoked will by a codicil thereto that the codicil should show that the testator knew that his will had been revoked. The essential thing to be shown by the codicil is that, as expressed therein or to be implied therefrom, the codicil conveys the meaning that the will still expresses the testamentary intention of the testator as of the time of the execution of the codicil, and to what extent the will still expresses that intention, whether to the extent of the whole will, and, if not, to what extent. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
Or intention that writing operate as codicil. —
The fact that a testator did not intend the language used in a codicil reviving a will revoked by the birth of children to operate as a codicil is immaterial. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
Statement on Masonic form held to revive will. —
A statement, made on a Masonic form, duly signed and witnessed, that signer had made a will in his wife’s favor, was a sufficient codicil to revive that will under this section, when it had been made inoperative under § 64.1-70 by subsequent birth of children. Gooch v. Gooch, 134 Va. 21 , 113 S.E. 873 , 1922 Va. LEXIS 141 (1922).
A revived will speaks as of the date of the codicil. Corr v. Porter, 74 Va. (33 Gratt.) 278, 1880 Va. LEXIS 41 (1880); Hatcher v. Hatcher, 80 Va. 169 , 1885 Va. LEXIS 53 (1885).
And the law in force when the codicil was executed governs. Corr v. Porter, 74 Va. (33 Gratt.) 278, 1880 Va. LEXIS 41 (1880).
§ 64.2-412. Revocation by divorce or annulment; revival upon remarriage; no revocation by other change.
- For the purposes of this section, the terms “revocable,” “settlor,” “trust instrument,” and “trustee” have the same meanings as provided in § 64.2-701 .
- If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Unless the will expressly provides otherwise, any provision conferring a general or special power of appointment on the former spouse or nominating the former spouse as executor, trustee, conservator, or guardian is also revoked.
- Property prevented from passing to a former spouse because of revocation pursuant to subsection B shall pass as if the former spouse failed to survive the testator. Provisions of a will conferring a power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator.
-
Unless the trust instrument expressly provides otherwise, if a settlor creates a revocable trust and if, after such creation:
- The settlor is divorced from the bond of matrimony or the settlor’s marriage is annulled and the trust was revocable immediately before the divorce or annulment, then a provision of such revocable trust transferring property to or conferring any beneficial interest on the settlor’s former spouse is revoked upon the divorce or the annulment of the settlor’s marriage, and such property or beneficial interest shall be administered as if the former spouse failed to survive the divorce or annulment; or
- An action is filed (i) for the divorce or annulment of the settlor’s marriage to the settlor’s spouse or for their legal separation or (ii) by either the settlor or the settlor’s spouse for separate maintenance from the other, and the trust was revocable at the time of the filing, then a provision of such revocable trust conferring a power, including a power of appointment, on the spouse or nominating or appointing the spouse as a fiduciary, including trustee, trust director, conservator, or guardian, is revoked upon the filing, and such provision shall be interpreted as if the former spouse failed to survive the filing.
- If the provisions of the will or revocable trust instrument are revoked solely pursuant to this section, and there is no subsequent will, trust revocation, other than under this section, or inconsistent codicil or amendment, the provisions shall be revived upon the testator’s or settlor’s remarriage to the former spouse. Nothing in this section shall prevent a testator or settlor from transferring property to, conferring any beneficial interest on, conferring a power on, or nominating or appointing as a fiduciary a spouse or former spouse subsequent to a revocation under this section.
- Except as provided in this section, no change of circumstances shall be deemed to revoke a will or trust instrument.
- This section applies to trusts and trust provisions only to the extent the event causing the revocation under subsection D occurs on or after July 1, 2018.
History. 1968, c. 656, § 64.1-59; 1985, c. 429; 2012, c. 614; 2018, c. 44.
The 2018 amendments.
The 2018 amendment by c. 44, added subsections A, D, and G, and redesignated remaining subsections accordingly; in subsection C, substituted “subsection B” for “this section”; in subsection E, inserted “or revocable trust instrument,” “trust revocation, other than under this section,” “or amendment,” and “or settlor’s” in the first sentence and added the second sentence; and in subsection F, added “or trust instrument” at the end.
Law Review.
For survey of Virginia law on trusts and estates for the year 1975-1976, see 62 Va. L. Rev. 1497 (1976).
for the year 1978-1979, see 66 Va. L. Rev. 375 (1980).
For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
CASE NOTES
Editor’s note.
The cases below were decided under prior law.
Public policy. —
It is a statutory declaration of public policy concerning wills of divorced testators, which provides without condition, reservation or qualification that a divorced spouse is to be denied any benefits under a will executed prior to divorce. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153, 1976 Va. LEXIS 219 (1976).
The obvious purpose of this section was to incorporate into statute the presumed intent of a testator that any provision in his will for the benefit of his spouse be terminated in the event of their divorce. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153, 1976 Va. LEXIS 219 (1976).
This section shifts to the testator the burden of taking affirmative action to reverse the intent implicit in the law. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153, 1976 Va. LEXIS 219 (1976).
This section applies to wills executed and divorces obtained before, as well as after, the effective date of the statute. Papen v. Papen, 216 Va. 879 , 224 S.E.2d 153, 1976 Va. LEXIS 219 (1976).
How property passes after revocation under section. —
Property devised to a former spouse, which is prevented from passing because of statutory revocation, shall pass as if the former spouse failed to survive the decedent unless a contrary intention is apparent from the provisions of the will. Jones v. Brown, 219 Va. 599 , 248 S.E.2d 812, 1978 Va. LEXIS 218 (1978).
Where the applicable provisions of a will manifested a clear intent on the part of the testator to first prefer his wife, but, after her, to prefer his first heir at law to the exclusion of the other heirs at law, and divorce revoked the devise to the former wife just as surely as if she had died, it was proper to construe the will so that the first heir took the entire estate under the will as though the testator’s former wife predeceased him, since such a construction not only would carry out the testator’s clear intent, but would avoid intestacy, which is not favored in the law. Jones v. Brown, 219 Va. 599 , 248 S.E.2d 812, 1978 Va. LEXIS 218 (1978).
CIRCUIT COURT OPINIONS
Designation of beneficiary. —
Where a state employee had designated an ex-wife as beneficiary of any accumulated retirement contributions and because the parties’ divorce was prior to July 1, 1993, §§ 20-111.1 , 64.1-16.2 c, and 64.1-59 did not apply; as a result, the designation in favor of the ex-wife was not revoked when the parties were divorced. Va. Ret. Sys. v. Bonaparte, 61 Va. Cir. 304, 2003 Va. Cir. LEXIS 129 (Richmond Mar. 7, 2003) (decided under prior law).
§ 64.2-413. Effect of subsequent conveyance on will.
Except for an act that results in the revocation of a will pursuant to this article, any conveyance or other act done subsequent to the execution of a will shall not prevent the operation of the will with respect to such interest in the estate as the testator may have power to dispose of by will at the time of his death.
History. Code 1950, § 64-61; 1968, c. 656, § 64.1-61; 2012, c. 614.
CASE NOTES
Will is inoperative as to property parted with in testator’s lifetime. —
It is competent for a testator during his life to revoke any part of his will, and a will is inoperative as to such property as was parted with by testator in his lifetime. Collup v. Smith, 89 Va. 258 , 15 S.E. 584 , 1892 Va. LEXIS 91 (1892) (decided under prior law).
Effect of conditional contract where condition fulfilled after death. —
Where the decedent devised an interest in real estate by will, and subsequently entered into conditional contracts to convey the land, the doctrine of equitable conversion will not be applied to adeem the devise where the condition is fulfilled after the death of the decedent. Therefore, proceeds from the sale devolve upon the devisees, not upon the residuary legatees. Bauserman v. DiGiulian, 224 Va. 414 , 297 S.E.2d 671, 1982 Va. LEXIS 311 (1982) (decided under prior law).
Article 3. Construction and Effect.
§ 64.2-414. When wills deemed to speak.
- A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.
- Every will reexecuted or republished, or revived by any codicil, shall be deemed to have been made at the time it was reexecuted, republished, or revived.
History. Code 1950, §§ 64-62, 64-71; 1968, c. 656, §§ 64.1-62, 64.1-72; 2012, c. 614.
Law Review.
For survey of Virginia law on wills, trusts and estates for the year 1970-1971, see 57 Va. L. Rev. 1494 (1971).
Research References.
Virginia Forms (Matthew Bender). No. 5-1301 Complaint to Construe a Will, et seq.; No. 15-107 Codicil.
CASE NOTES
Editor’s note.
The cases annotated below were decided under prior law.
Ordinarily, wills speak as of the date of the death, etc., of the testator and are to be examined from every angle. Murchison v. Wallace, 156 Va. 728 , 159 S.E. 106 , 1931 Va. LEXIS 228 (1931).
Consistent with § 64.1-62, requiring that wills be construed as if the testator died immediately before death, unless the will showed a contrary intent, inter vivos trusts were to be construed according to the law in effect at the time the trust was executed, absent language showing a contrary intent, as such a rule recognized that the interests of trust beneficiaries accrued when the trust was executed and protected those interests, and such a rule was compelled by § 1-16 [see now § 1-239], mandating that no new law should be construed in any way whatever to affect any right accrued, or claim arising before the new law took effect. McGehee v. Edwards, 268 Va. 15 , 268 Va. 23 , 597 S.E.2d 99, 2004 Va. LEXIS 96 (2004).
But question is one of intention. —
When a will may be construed to speak and take effect is a question of intention, in a qualified sense. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21, 1872 Va. LEXIS 2 (1872).
Where the language of testatrix’s will showed her intention to give to the legatees of certain corporate stock the proportionate interest she had in the corporations at the time of the execution of her will, thereby making the legacies specific, this showed testatrix’s intent to have her will speak as of the date of its execution, which made inapplicable the statutory rule of construction that a will ordinarily speaks as of the date of death. Thus, additional shares the testatrix received as a result of stock splits passed to such legatees. Warner v. Baylor, 204 Va. 867 , 134 S.E.2d 263, 1964 Va. LEXIS 132 (1964).
Will intended to take effect immediately. —
A clause in a will of a husband giving to his wife the power to make a will of his property must have been intended to take effect from its date; and so the will of the wife as an execution of the power will be intended to take effect from its date, though not to divest and pass the title in the lifetime of her husband and herself. Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21, 1872 Va. LEXIS 2 (1872).
This section is declaratory of the common-law rule as to personalty but changes it as to realty. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 , 1897 Va. LEXIS 103 (1897).
It puts realty and personalty on same footing. —
The obvious effect of this section was to make wills speak with respect to real estate, as they had done under the common law with respect to personal estate, as of the death of the testator, thus sweeping away the distinction which had theretofore been held to exist with respect to bequests of personalty and devises of real estate. Kent v. Kent, 106 Va. 199 , 55 S.E. 564 , 1906 Va. LEXIS 121 (1906).
As to void or lapsed devises or legacies. —
The effect of this section is to put real estate and personal property on the same footing as to void or lapsed devises or legacies. Kent v. Kent, 106 Va. 199 , 55 S.E. 564 , 1906 Va. LEXIS 121 (1906).
Legacy to dead legatee does not fail. —
A legacy bequeathed to a legatee who was dead at the time the will was written does not lapse or become void, but, under the provisions of this section and former § 64.1-64, passes to the issue of the legatee who survives the testator, unless a different disposition thereof is made or required by the will. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 , 1897 Va. LEXIS 103 (1897).
Will passes after-acquired property. —
The will of a married woman, though made in her husband’s lifetime, disposing of all her estate, passes that acquired from her husband under his will, he dying first. The will speaks as of the time of her death, and there is always a strong presumption for complete testacy. Bowe v. Bowe, 118 Va. 28 , 86 S.E. 856 , 1915 Va. LEXIS 119 (1915).
CIRCUIT COURT OPINIONS
Change in status of beneficiary. —
Where a hospital, a beneficiary of a charitable testamentary trust, had been at the time the testator executed his will an acute general care hospital that did not bill its patients, and before his death became a physical rehabilitation hospital that billed patients but also provided free or reduced-cost treatment to the indigent, the trustee’s claim that its changed character disqualified it from receiving trust money failed, as: (1) The will spoke as of the testator’s death, not the date he signed the will; and (2) The hospital continued to serve indigent patients, which was the purpose the trust fund was intended to support. Mattox v. Annabella R. Jenkins Found., 61 Va. Cir. 492, 2003 Va. Cir. LEXIS 124 (Richmond May 6, 2003) (decided under prior law).
§ 64.2-415. How certain trust provisions, bequests, and devises to be construed; nonademption in certain cases.
- As used in this section:“Incapacitated” means impairment by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.“Revocable,” “settlor,” “trust instrument,” and “trustee” have the same meanings as provided in § 64.2-701 .
-
Unless a contrary intention appears in the will or trust instrument:
- A bequest or trust provision requiring distribution by reason of the settlor’s death of specific securities, whether or not expressed in number of shares, shall include as much of the securities as is part of the estate or is or becomes part of the trust by reason of the testator’s or settlor’s death, any additional or other securities of the same entity owned by the testator or trustee by reason of action initiated by the entity, excluding any securities acquired by the exercise of purchase options, and any securities of another entity acquired with respect to the specific securities mentioned in the bequest or trust provision as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;
- A bequest, devise, or trust provision requiring distribution by reason of the settlor’s death of specific property shall include the amount of any condemnation award for the taking of the property that remains unpaid at death and any proceeds unpaid at death on fire and casualty insurance on the property; and
- A bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is under a disability, was sold by a conservator, guardian, or committee for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the conservator, guardian, or committee for the testator. For purposes of this subdivision, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision 2. This subdivision shall not apply if, after the sale or casualty, it is adjudicated that the disability of the testator had ceased and the testator survived the adjudication by one year.
- Unless a contrary intention appears in a testator’s will or durable power of attorney, a bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is incapacitated, was sold by an agent acting within the authority of a durable power of attorney for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the agent. For purposes of this subsection, (i) the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2, (ii) no adjudication of the testator’s incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator. This subsection shall not apply (a) if the agent’s sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the testator or (b) to a power of attorney limited to one or more specific purposes.
- Unless a contrary intention appears in the will, a devise that would describe a leasehold estate, if the testator had no freehold estate that could be described by the devise, shall be construed to include such a leasehold estate.
- Unless a contrary intention appears in the trust instrument, a provision requiring distribution of specific property by reason of the death of the settlor shall, in addition to such property that is or becomes part of the trust by reason of the settlor’s death, be deemed to be a distribution of a pecuniary amount if, while the settlor was incapacitated, (i) such specific property was sold by the trustee or (ii) the proceeds of fire or casualty insurance as to such property were paid to the trustee. For purposes of this subsection, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2. For purposes of this subsection, no adjudication of the settlor’s incapacity before death is necessary. This subsection shall not apply if the trustee’s sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the settlor.
- This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor’s death on or after July 1, 2018, and the distribution occurs by reason of the settlor’s death and is of property that is or becomes part of the trust by reason of the settlor’s death.
History. Code 1950, § 64-66; 1968, c. 656, § 64.1-66; 1985, c. 429, § 64.1-62.3; 1995, c. 381; 2012, cc. 476, 507, 614; 2018, c. 44.
Editor’s note.
Acts 2012, cc. 476 and 507 amended former § 64.1-62.3, from which this section is derived. Pursuant to § 30-152 and Acts 2012, c. 614, cl. 4, the 2012 amendments by Acts 2012, cc. 476 and 507 have been given effect in this section by substituting “intellectual disability” for “mental deficiency” in subsection A.
The 2018 amendments.
The 2018 amendment by c. 44, in subsection A, added the definition for “Revocable”; rewrote subdivisions B 1 and 2; and added subsections E and F.
Law Review.
For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 18 Property Disposed Of. § 18.19 “Stocks.” Cox.
Virginia Forms (Matthew Bender). No. 15-214 Disposition of Tangible Personal Property, et seq.
§ 64.2-416. Devises, bequests, and distributions that fail; how to pass.
- For the purposes of this section, the terms “revocable,” “settlor,” “trust instrument,” and “trustee” have the same meanings as provided in § 64.2-701 .
-
Unless a contrary intention appears in the will or trust instrument, and except as provided in §
64.2-418
:
- If a devise, bequest, or distribution other than a residuary devise, bequest, or distribution fails for any reason, it shall become a part of the residue; and
- If the residue is devised, bequeathed, or otherwise required to be distributed to two or more persons and the share of one fails for any reason, such share shall pass to the other residuary devisees, legatees, or beneficiaries in proportion to their interests in the residue.
- Notwithstanding the provisions of §§ 64.2-2604 and 64.2-2605 and unless a contrary intention appears in the will, if a testator makes a bequest, not exceeding the value of $100, to a legatee and such legatee refuses to take possession of such bequest, then the bequest shall fail and becomes a part of the residue of the testator’s estate.
- Subsection B applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor’s death on or after July 1, 2018, and the devise, bequest, or distribution occurs by reason of the settlor’s death.
History. 1985, c. 592, § 64.1-65.1; 2003, c. 253; 2012, c. 614; 2014, c. 532; 2018, c. 44.
The 2014 amendments.
The 2014 amendment by c. 532, in subsection B, substituted “$100” for “$25.”
The 2018 amendments.
The 2018 amendment by c. 44, added subsections A and D, redesignated former subsections A and B as B and C; in subdivision B 1, inserted “or distribution” following “bequest” twice; and in subdivision B 2, inserted “or otherwise required to be distributed” and “or beneficiaries.”
Law Review.
For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
CASE NOTES
Section puts devises on same footing as legacies of personalty. —
At common law, a general residue of personal property comprehends everything not otherwise effectually disposed of by the will, and since the revisal of 1849 we have had a statute in Virginia which puts devises of real estate on the same footing in this particular with legacies of personalty. Gallagher v. Rowan, 86 Va. 823 , 11 S.E. 121 , 1890 Va. LEXIS 48 (1890) (decided under prior law). See Stonestreet v. Doyle, 75 Va. 356 , 1881 Va. LEXIS 19 (1881) (decided under prior law).
Determination that life tenant’s interest in residuary estate failed and passed to the residuary devisees under this section ignored the early vesting rule which provides that unless the intention to postpone vesting is clearly indicated in the will, all devises and bequests are to be construed as vesting at testator’s death. Therefore, a life tenant may own a remainder in testator’s residuary estate. Coleman v. Coleman, 256 Va. 64 , 500 S.E.2d 507, 1998 Va. LEXIS 94 (1998) (decided under prior law).
CIRCUIT COURT OPINIONS
Void gift. —
When gifts in a clause were made to a “boy” and “others who may render future service,” the gifts were void for uncertainty and the shares were to pass to other residuary legatees. Freeman v. Anderson, 55 Va. Cir. 353, 2001 Va. Cir. LEXIS 297 (Richmond June 28, 2001) (decided under prior law).
Revoked gift. —
Executor was instructed that: (1) a decedent revoked her testamentary gift to a residuary beneficiary by obliterating his name on her will with an opaque correction fluid, (2) the unrevoked portions of the will remained in effect, and (3) under subsection B of this section and to avoid a partial intestacy, the residue was to be divided proportionally between the remaining two residuary beneficiaries as: (i) the decedent devised the residue of her estate to two or more persons, (ii) nothing in the will suggested that the decedent had an intention contrary to the provisions of § 64.1-65.1, and (iii) it was settled law in Virginia that a gift that had been revoked was one that failed for any reason. Estate of Doughtie, 70 Va. Cir. 329, 2006 Va. Cir. LEXIS 48 (Roanoke Mar. 27, 2006) (decided under prior law).
Residuary estate. —
Entirety of decedent’s estate was within the residuary estate as certain devises and bequests in the decedent’s will failed when the designated beneficiary predeceased the decedent and, thus, did not share in the residuary estate as contemplated by the will. Because the charitable trust created by the will was a valid trust with the beneficiary as the designated trustee, a principal beneficiary was not required, the charities maintained an equitable interest in the trust corpus, and a new trustee was to be appointed to oversee the trust. Mirman v. Clements, 104 Va. Cir. 194, 2020 Va. Cir. LEXIS 11 (Norfolk Feb. 4, 2020).
§ 64.2-417. When advancement deemed satisfaction of devise or bequest.
Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.
History. Code 1950, § 64-63; 1968, c. 656, § 64.1-63; 1985, c. 432, § 64.1-63.1; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).
CASE NOTES
Editor’s note.
The cases annotated below were decided under former law, prior to the enactment of this section.
For the history of this section, see Harrison v. Harrison, 171 Va. 224 , 198 S.E. 902 , 1938 Va. LEXIS 275 (1938).
The doctrine of hotchpot has been enlarged by this section to apply in certain circumstances to any person, although advancements, properly speaking, are gifts by anticipation from a parent to a child. Garrett v. Andis, 159 Va. 150 , 165 S.E. 657 , 1932 Va. LEXIS 180 (1932).
A conveyance to a legatee is presumed to be in satisfaction of the legacy. Harrison v. Harrison, 171 Va. 224 , 198 S.E. 902 , 1938 Va. LEXIS 275 (1938).
But rule does not apply to gift made before will. —
Where the gift is given before the making of the will, and the will does not charge it as an advancement, the court cannot so charge it in settling the estate. Strother v. Mitchell, 80 Va. 149 , 1885 Va. LEXIS 50 (1885).
And presumption is rebuttable. —
The presumption that a subsequent conveyance to a legatee was intended to satisfy the legacy is, under the express terms of this section, liable to be repelled by circumstantial evidence. Harrison v. Harrison, 171 Va. 224 , 198 S.E. 902 , 1938 Va. LEXIS 275 (1938).
When a legacy is given to a child, and afterwards an advancement is made to that child, the advancement is taken as a satisfaction of the legacy; but this presumption may be rebutted by evidence. Strother v. Mitchell, 80 Va. 149 , 1885 Va. LEXIS 50 (1885).
§ 64.2-418. When children or descendants of beneficiary to take estate or trust.
- For the purposes of this section, the terms “revocable,” “settlor,” “trust instrument,” and “trustee” have the same meanings as provided in § 64.2-701 .
- Unless a contrary intention appears in the will or trust instrument, if a beneficiary, including a beneficiary under a class gift, is (i) a grandparent or a descendant of a grandparent of the testator or settlor and (ii) dead at the time of execution of the will or trust instrument or dead at the time of the testator’s or settlor’s death, the descendants of the deceased beneficiary who survive the testator or settlor take in the place of the deceased beneficiary. The portion of the testator’s estate or the trust that the deceased beneficiary was to take shall be divided into as many equal shares as there are (a) surviving descendants in the closest degree of kinship to the deceased beneficiary and (b) deceased descendants, if any, in the same degree of kinship to the deceased beneficiary who left descendants surviving at the time of the testator’s or settlor’s death. One share shall pass to each such surviving descendant and one share shall pass per stirpes to such descendants of deceased descendants.
- This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor’s death on or after July 1, 2018, and the beneficiary would have taken by reason of the settlor’s death if the beneficiary survived the settlor.
History. 1985, c. 592, § 64.1-64.1; 2012, c. 614; 2018, c. 44.
The 2018 amendments.
The 2018 amendment by c. 44, added subsections A and C, and rewrote subsection B.
Law Review.
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981).
for the year 1985, see 19 U. Rich. L. Rev. 779 (1985).
For note, “Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection,” see 36 Wm. & Mary L. Rev. 269 (1994).
For article, “Wills, Trusts, and Estates,” see 53 U. Rich. L. Rev. 179 (2018).
CASE NOTES
Editor’s note.
Most of the cases annotated below were decided under former law.
This section made a sweeping change from the common-law doctrine of lapsed or void legacies, declaring what the law should be in the future in no uncertain language, and our courts cannot make exceptions and uphold distinctions where the plain letter of the law recognizes none. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 , 1897 Va. LEXIS 103 (1897).
The general doctrine, at common law, is that a devise lapses in all cases where the devisee dies before the testator. And if the devise be to several, as tenants in common, and one of them dies in the testator’s lifetime, his share lapses. In Virginia the only modification of the doctrine is found in this section. Gardner v. Gardner, 152 Va. 677 , 148 S.E. 781 , 1929 Va. LEXIS 200 (1929).
It is to be liberally construed. —
This section is in furtherance of what may fairly be presumed to have been the intention of the testator, and, in order to effect its object, it should be construed liberally. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 , 1938 Va. LEXIS 266 (1938).
It is not for the benefit of the dead legatee, but is intended to safeguard the interests of those who take under such legatee. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 , 1938 Va. LEXIS 266 (1938).
The issue of a deceased legatee takes as substituted legatees of the deceased ancestor just as if their names had been inserted in the will by the testator himself. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 , 1938 Va. LEXIS 266 (1938).
The word “estate” covers every property of every kind which the decedent might have had. Hester v. Sammons, 171 Va. 142 , 198 S.E. 466 , 1938 Va. LEXIS 266 (1938).
This section takes no account of precedent events, other than the death of the devisee or legatee, and does not restrict its operation to cases only in which the death of the devisee or legatee occurs after the execution of the will and before the death of the testator. The only conditions it imposes are: The devisee or legatee must have died before the testator, leaving issue who survive the testator. It does not impose the condition that the devisee or legatee shall be “in esse” at the date of the will, but the policy of the law is plainly disclosed, viz.: to uphold and give effect to a devise or legacy rather than to allow it to fail for the want of a person “in esse” to take it. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 , 1897 Va. LEXIS 103 (1897).
Legacy to one dead when will written does not lapse. —
A legacy bequeathed to a legatee who was dead at the time the will was written does not lapse or become void, but, under the provisions of this section and § 64.1-62 passes to the issue of the legatee who survives the testator, unless a different disposition thereof is made or required by the will. Wildberger v. Cheek, 94 Va. 517 , 27 S.E. 441 , 1897 Va. LEXIS 103 (1897).
This section cannot enlarge a power of appointment. —
It was contended that although the donee of a power was restricted in her selection to the nieces and nephews of her husband, yet this section enabled her to do indirectly what she could not do directly, i.e., select from the class deceased members to be the beneficiaries, and by the provisions of § 64.1-45 and this section the issue of such deceased parties would be entitled to the property. It was held that this section did not enlarge the power of appointment, and it was error to hold that a grandniece was entitled to one third of the real estate as issue of her father. Daniel v. Brown, 156 Va. 563 , 159 S.E. 209 , 1931 Va. LEXIS 212 (1931).
Appointment under a power, made by will, lapses by the appointee’s death in the testator’s lifetime. Burruss v. Nelson, 132 Va. 17 , 110 S.E. 254 , 1922 Va. LEXIS 3 (1922).
Unless power is general and appointee leaves issue. —
If a power had been general in the donee to select the objects of the bounty and the donee of the power had exercised her discretion and the devisees named by her had died prior to her death, then this section would have prevented the lapse of such devises, in favor of the issue. Daniel v. Brown, 156 Va. 563 , 159 S.E. 209 , 1931 Va. LEXIS 212 (1931).
CIRCUIT COURT OPINIONS
Testatrix intended to dispose of lapsed devise by will. —
Will read as a whole and interpreted under the presumption against intestacy showed that a testatrix intended to avoid the operation of this section and to dispose of her entire estate through her will rather than through intestacy; she therefore intended for a share of her residual estate left in trust for a son who predeceased her to be distributed among the other residuary beneficiaries, rather than through intestacy, even though the will did not provide for disposition of his share if he died before she did. Stroup v. Stroup, 70 Va. Cir. 454, 2004 Va. Cir. LEXIS 378 (Alexandria Nov. 16, 2004) (decided under prior law).
§ 64.2-419. Provision for omitted children when no child living when will made.
- 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 entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.
- The devisees and legatees shall contribute ratably to the portion of the testator’s estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. 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.
History. Code 1950, § 64-69; 1968, c. 656, § 64.1-70; 1972, c. 825; 2012, c. 614.
Law Review.
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981).
CASE NOTES
For the early history of this section, see Wood v. Tredway, 111 Va. 526 , 69 S.E. 445 , 1910 Va. LEXIS 80 (1910) (decided under prior law).
§ 64.2-420. Provision for omitted children when child living when will made.
- If a testator executes a will that makes provision for a living child of the testator, a child born or adopted after execution of a testator’s will who is neither provided for nor expressly excluded by the will is entitled to the lesser of (i) such portion of the testator’s estate as the afterborn or after-adopted child would have been entitled to if the testator had died intestate or (ii) the equivalent in amount to any bequests and devises to any child named in the will, and if there are bequests or devises to more than one child, then to the largest aggregate bequest or devise to any child.
- The devisees and legatees of the testator’s will shall contribute ratably to the portion of the testator’s estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child 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.
History. Code 1950, § 64-70; 1960, c. 527; 1968, c. 656, § 64.1-71; 1972, c. 825; 1978, c. 647; 2012, c. 614.
Law Review.
For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).
For survey of Virginia law on wills, trusts, and estates for the year 1979-80, see 67 Va. L. Rev. 369 (1981).
CASE NOTES
Editor’s note.
The cases annotated below were decided under prior law.
The act, on which this section is based, was enacted in 1794 and was held not to be retroactive. Savage v. Mears, 41 Va. (2 Rob.) 570, 1843 Va. LEXIS 52 (1843).
Portion of pretermitted child is raised by proportionate contribution. —
The portion of a posthumous child is not to be raised by a division of the estate into equal parts, but by a proportionate contribution by the devisees and legatees and those claiming under them. Armistead v. Dangerfield, 17 Va. (3 Munf) 20, 1811 Va. LEXIS 112 (1811).
Purchasers from the devisees and legatees are not exempted from contributing to make up the portion of a posthumous child by their having purchased without notice of the claim. Armistead v. Dangerfield, 17 Va. (3 Munf) 20, 1811 Va. LEXIS 112 (1811).
Any provision for a child which shows that he has not been forgotten is sufficient to prevent the application of this section. Allison v. Allison, 101 Va. 537 , 44 S.E. 904 , 1903 Va. LEXIS 61 (1903).
A devise in general terms, to the testator’s “children” does not comprehend a posthumous child, so as to prevent it from claiming, under this section, as pretermitted by the will. Armistead v. Dangerfield, 17 Va. (3 Munf) 20, 1811 Va. LEXIS 112 (1811).
§ 64.2-421. Construction of certain conditions of spouse’s survivorship.
- If property passes from the decedent or is acquired from the decedent by reason of the decedent’s death under a will or trust that provides that the spouse of the decedent shall survive until the distribution of the gift, the will or trust shall be construed as requiring that the spouse survive until the earlier of the date on which the distribution occurs or the date six months after the date of the death of the testator or decedent, unless the court shall find that the decedent intended a contrary result.
- The proceeding to determine whether the decedent intended that the spouse actually survive until the distribution of the gift shall be filed within 12 months following the death of the decedent. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.
History. 1997, c. 263, § 64.1-66.2; 2012, c. 614.
§ 64.2-422. When omitted spouse to take intestate portion.
If a testator fails to provide by will for a surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate such spouse would have received if the decedent left no will, unless it appears from the will or from the provisions of a valid premarital or marital agreement that the omission was intentional.
History. 1985, c. 430, § 64.1-69.1; 1991, c. 441; 2012, c. 614.
Law Review.
For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich. L. Rev. 779 (1985).
For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).
§ 64.2-423. Repealed by Acts 2016, c. 266, cl. 2.
Editor’s note.
Former § 64.2-423 , pertaining to exercise of power of appointment, derived from Acts 1985, c. 429, § 64.1-67.1; 2012, c. 614.
§ 64.2-424. When direction to purchase annuity binding on legatee.
If a testator directs in his will that an annuity sufficient to provide income of at least $100 per month be purchased for a legatee, the legatee who is to receive the income from the annuity shall not have the right to instead take the sum directed to be used to purchase such annuity, except to the extent that the will expressly provides for such right or that an assignable annuity be purchased.
History. Code 1950, § 64-68.1; 1956, c. 448; 1968, c. 656, § 64.1-69; 2012, c. 614; 2014, c. 532.
The 2014 amendments.
The 2014 amendment by c. 532 substituted “$100” for “$10.”
Michie’s Jurisprudence.
For related discussion, see 1B M.J. Annuities, § 8.
§ 64.2-425. Interest on pecuniary legacies.
- Unless a contrary intent is expressed in or to be implied from a will or trust: (i) interest on a pecuniary legacy begins to run at the expiration of one year after the date of the death of the testator and (ii) interest on a pecuniary amount from a trust begins to run at the expiration of one year after the date on which the beneficiary is entitled to receive the pecuniary amount.
- For the purposes of this section, a marital formula pecuniary bequest either outright to the testator’s spouse or in trust for the benefit of such spouse, designed in either case to qualify for the benefit of the marital deduction allowed by the Internal Revenue Code, shall not be considered a pecuniary legacy entitled to interest at the expiration of one year after the death of the testator but, instead, shall share ratably with the residue of the estate in the income earned by the estate during the period of administration, unless a contrary intent is expressed in the will.
History. Code 1950, § 64-68; 1968, c. 656, § 64.1-68; 1999, c. 975; 2012, c. 614.
§ 64.2-426. Testamentary additions to trusts by testator dying on or after July 1, 1994, and before July 1, 1999.
-
A devise or bequest, including the exercise of a power of appointment, may be made by a will to the trustees of an inter vivos trust or testamentary trust, whether the trust was established by the testator, by the testator and another, or by some other
person if:
- In the case of an inter vivos trust, the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator’s will; or
- In the case of a testamentary trust, the trust is identified in the testator’s will and its terms are set forth in the valid last will of a person who has predeceased the testator and whose will was executed before or concurrently with the execution of the testator’s will.In either event, at the time the devise or bequest is to be distributed to the trustees at least one trustee of the trust shall be (i) an individual or (ii) an entity authorized to do a trust business in the Commonwealth. However, prior to distribution of the devise or bequest to the trustees, each nonresident individual or entity shall file with the clerk of the circuit court of the jurisdiction wherein the testator’s will was admitted to probate, a consent in writing that service of process in any action against him as trustee or any other notice with respect to administration of the trust in his charge, may be by service upon the clerk of the court in which he is qualified or upon a resident of the Commonwealth at such address as he may appoint in the written instrument filed with the clerk. Where any nonresident qualifies pursuant to this subsection, bond with surety shall be required in every case unless at least one other trustee is a resident or the court in which the nonresident qualifies waives surety under the provisions of § 64.2-1411 .An entity not authorized to do a trust business in the Commonwealth at the time the devise or bequest is to be distributed shall not, in any case, be a trustee of such trust.
-
The inter vivos trust may be an unfunded trust, and for the purposes of this section:
- An inter vivos trust shall be deemed established upon execution of the instrument creating such trust; and
- An inter vivos trust may contain provisions whereby the amount of corpus to be allocated to any particular portion of the trust will be determined, measured, or affected by the adjusted gross estate of the settlor or testator for federal estate tax purposes, by the amount of the marital deduction allowable to the settlor’s or testator’s estate, by the amount of deductions or credits available to the estate of the settlor or testator for federal estate tax purposes, by the value of such estate for federal estate tax purposes, or by any other method, and that an unfunded trust shall not be deemed to be testamentary for that reason.
- The devise or bequest shall not be invalid because (i) the trust is amendable or revocable or both by the settlor or any other person, either prior or subsequent to the testator’s death, (ii) the trust instrument or any amendment thereto was not executed in the manner required for wills, or (iii) the trust was amended after the execution of the will or after the death of the testator.
-
Unless the testator’s will provides otherwise, the property so devised or bequeathed:
- Shall not be deemed held under a testamentary trust of the testator, but shall become a part of the corpus of the trust to which it is given or, if the will so specifies, the property shall become a part of any one or more particular portions of the corpus; and
- Shall be administered and disposed of (i) in accordance with the terms of the trust as they appear in writing at the testator’s death, including any amendments thereto made before the death of the testator, regardless of whether made before or after the execution of the testator’s will, or (ii) if the testator expressly specifies in his will, as such terms are amended after the death of the testator.
- In the event that the settlor or other person having the right to do so revokes or otherwise terminates the trust pursuant to a power to do so reserved in the trust instrument, and such revocation or termination is effected at a date subsequent to the death of a testator who has devised or bequeathed property to such trust, the revocation or termination shall be ineffective as to property devised or bequeathed to such trust by a testator other than the settlor, unless the testator’s will expressly provides to the contrary.
- The devise or bequest shall not be valid should the entire trust not be operative for any reason at the testator’s death. If the devise or bequest is to augment only one or more portions of the trust, the devise or bequest shall not be valid should the trust not be operative for any reason as to such portion at the testator’s death.
- In any case in which the devise or bequest to the trustee of a trust fails to take effect by reason of the fact that there is no qualified trustee acting at the time the devise or bequest is to be distributed, or that one or more of the trustees then acting is an entity not authorized to do a trust business in the Commonwealth, the court having jurisdiction with respect to the probate of the will or the administration of the testator’s estate, upon sufficient evidence of the existence of a trust estate for administration, independent of the testator’s estate, and of the validity of the trust established by virtue of such separate written instrument, may determine that the trusts declared by such separate written instrument are the trusts upon which the devise or bequest is made to the same extent and with like effect as if such trust provisions had been extensively incorporated in the testamentary documents, and that such trusts do not fail for want of a qualified trustee to administer the trust estate so devised or bequeathed. The court may then grant such further and ancillary relief as the nature of the case may require, including the appointment of a qualified trustee to perform the trusts with respect to the estate so devised or bequeathed, and granting instruction and guidance to the trustee so appointed in the performance of his duties. Nothing herein shall be deemed to authorize any such trustee to be excused from any obligations of accounting or performance as are required by law of fiduciaries, nor to prevent the transfer of the trust estate to a trustee appointed by or qualified in a court of record in a foreign state in accordance with the provisions of § 64.2-706 .
- This section shall apply to any devise or bequest under the will of a decedent dying on or after July 1, 1994, and before July 1, 1999.
History. Code 1950, § 64-71.1; 1958, c. 450; 1962, c. 573; 1966, c. 538; 1968, c. 656, § 64.1-73; 1972, c. 332; 1982, c. 373; 1991, c. 343; 1992, c. 66; 1994, c. 562; 1995, c. 684; 1996, c. 680; 1999, c. 252; 2005, c. 935; 2012, c. 614.
Law Review.
For survey on Virginia law on wills, trusts and estates for the year 1971-1972, see 58 Va. L. Rev. 1363 (1972).
for the year 1979-1980, see 67 Va. L. Rev. 369 (1981).
For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).
For 1994 survey of Virginia wills, trusts, and estates law, see 28 U. Rich. L. Rev. 1145 (1994).
For an article, “Wills, Trusts, and Estates,” see 31 U. Rich. L. Rev. 1249 (1997).
§ 64.2-427. Testamentary additions to trusts by testator dying after June 30, 1999.
- A will may validly devise or bequeath property, including by the exercise of a power of appointment, to the trustee of a trust established or to be established (i) during the testator’s lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts or (ii) at the testator’s death by the testator’s devise or bequest to the trustee, if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator’s will or in another individual’s will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator’s death.
- Unless the testator’s will provides otherwise, property devised or bequeathed to a trust described in subsection A is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator’s death.
- Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise or bequest to lapse.
- Unless at least one trustee of the trust is an individual resident of the Commonwealth or an entity authorized to do a trust business in the Commonwealth, at the time the devise or bequest is to be distributed to the trust, the testator’s personal representative shall not make any distribution to the trust until each nonresident individual or entity files with the clerk of the circuit court of the jurisdiction wherein the testator’s will was admitted to probate, a consent in writing that service of process in any action against the trustee or any other notice with respect to administration of the trust in the trustee’s charge may be by service upon a resident of the Commonwealth at such address as the trustee may appoint in the written instrument filed with the clerk. No further requirement shall be imposed upon any nonresident individual or entity as a condition to receiving the devise or bequest.
- This section applies to a will of a testator who dies after June 30, 1999, and it shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.
History. 1999, c. 252, § 64.1-73.1; 2012, c. 614.
Law Review.
For 2000 survey of Virginia wills, trusts and estates law, see 34 U. Rich. L. Rev. 1069 (2000).
§ 64.2-428. Distribution of assets by fiduciaries in satisfaction of pecuniary bequests or transfers in trust of pecuniary amount.
- Where a will or trust agreement authorizes or directs the fiduciary to satisfy wholly or partly in kind a pecuniary bequest or transfer in trust of a pecuniary amount, unless the instrument shall otherwise expressly provide, the assets selected by the fiduciary for that purpose shall be valued at their respective values on the date of their distribution.
- Whenever a fiduciary under the provisions of a will or other governing instrument is required to satisfy a pecuniary bequest or transfer in trust in favor of the testator’s or donor’s spouse and is authorized to satisfy such bequest or transfer by selection and distribution of assets in kind, and the will or other governing instrument further provides that the assets to be so distributed shall or may be valued by some standard other than their fair market value on the date of distribution, the fiduciary, unless the will or other governing instrument otherwise specifically directs, shall distribute assets, including cash, in a manner that is fairly representative of appreciation or depreciation in the value of all property available for distribution in satisfaction of such pecuniary bequest or transfer. This subsection shall not prevent a fiduciary from carrying out the provisions of the will or other governing instrument that require the fiduciary, in order to implement such a bequest or transfer, to distribute assets, including cash, having an aggregate fair market value at the date of distribution amounting to no less than the amount of the pecuniary bequest or transfer as finally determined for federal estate tax purposes.
- Any fiduciary having discretionary powers under a will or other governing instrument with respect to the selection of assets to be distributed in satisfaction of a pecuniary bequest or transfer in trust in favor of the testator’s or donor’s spouse shall be authorized to enter into agreements with the Commissioner of Internal Revenue of the U.S. Department of the Treasury and other taxing authorities requiring the fiduciary to exercise the fiduciary’s discretion so that cash and other properties distributed in satisfaction of such bequest or transfer in trust will be fairly representative of the appreciation or depreciation in value of all property then available for distribution in satisfaction of such bequest or transfer in trust, and any such agreement heretofore entered into after April 1, 1964, is hereby validated. Any such fiduciary shall be authorized to enter into any other agreement not in conflict with the express terms of the will or other governing instrument that may be necessary or advisable in order to secure for federal estate tax purposes the appropriate marital deduction available under the Internal Revenue Code, and to do and perform all acts incident to securing such deduction.
- Where a will or trust agreement directs the fiduciary to satisfy a pecuniary or fractional bequest or transfer in trust of a pecuniary amount or fractional share in favor of the testator’s or donor’s spouse with amounts or assets having a value equal to the maximum marital deduction available under the Internal Revenue Code, the interest of such spouse shall vest immediately upon the testator’s death in the case of a will, and upon the execution of the trust agreement in the case of a trust, regardless of when the exact amount of the bequest or transfer is finally determined.
History. Code 1950, § 64-71.2; 1966, c. 441; 1968, c. 656, § 64.1-74; 1978, c. 481; 2012, c. 614.
§ 64.2-429. Construction of trust provisions otherwise eligible for the election permitted under § 2056(b)(7) of the Internal Revenue Code.
If any trust created under a will or trust agreement made by a decedent dying after December 31, 1981, would qualify for the election specified in § 2056(b)(7) of the Internal Revenue Code but for (i) a direction that accrued income remaining in the hands of a trustee at the death of the surviving spouse of the decedent not be paid to the estate of the surviving spouse or (ii) an authorization to retain unproductive property as an asset of the trust, then, unless the decedent shall have specifically otherwise provided in the will or trust agreement by reference to this section, (a) all accrued and undistributed income of the trust at the death of the surviving spouse shall be paid to the personal representative of the surviving spouse as contemplated by the Uniform Principal and Income Act (§ 64.2-1000 et seq.) and (b) the surviving spouse shall have the right to require the trustee of the trust to make the trust assets productive of income, so as to render the trust eligible for the election provided in § 2056(b)(7) of the Internal Revenue Code.
This section shall apply to all wills and revocable trusts made by decedents dying after December 31, 1981, regardless of when the will or trust was made.
History. 1984, c. 339, § 64.1-74.1; 2012, c. 614.
§ 64.2-430. Certain marital deduction formula clauses to be construed to refer to federal marital deduction allowable if decedent had died on December 31, 1981.
- If property passes from the decedent or is acquired from the decedent by reason of the decedent’s death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, then such formula provision shall be construed as referring to the maximum amount of property eligible for the marital deduction as was allowable under the Internal Revenue Code as if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended to refer to the maximum marital deduction of the Internal Revenue Code in effect at the time of his death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer specifically to an unlimited marital deduction or an amount qualifying for such deduction, or to otherwise manifest an intent to have the estate qualify for the unlimited marital deduction.
- If property passes from the decedent or is acquired from the decedent by reason of the decedent’s death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, but no more than will reduce such federal estate tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, then such provision reducing such bequest to such amount necessary to reduce the federal tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, shall be construed as referring to a computation done as of December 31, 1981, that would have reduced the federal estate tax to zero if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended the computation to be made as of the date of death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer to the federal estate tax on a date later than September 12, 1981.
- The proceeding to determine whether the decedent intended that the computation under subsection A or B be made as of the date of death, rather than the earlier 1981 date, shall be filed within 12 months following the death of the testator or grantor. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.
History. 1982, c. 622, § 64.1-62.1; 1983, c. 512; 1987, c. 504; 2012, c. 614.
Law Review.
For 1987 survey of Virginia wills, trusts, and estates law, see 21 U. Rich. L. Rev. 855 (1987).
§ 64.2-431. Certain powers of appointment construed to refer to federal gift tax exclusion in effect on date of execution.
If an instrument executed before September 12, 1981, provides for a power of appointment that may be exercised during any period after December 31, 1981, and such power of appointment is defined in terms of, or by reference to, the maximum amount of property qualifying for the gift tax exclusion under federal law, then such instrument shall be construed as referring to the maximum amount of property eligible for the annual gift tax exclusion as was allowable under the Internal Revenue Code in effect on the date of execution of such instrument provided that the instrument described has not been amended after September 12, 1981, to refer specifically to the federal gift tax exclusion available after December 31, 1981, or the amount qualifying for such exclusion.
History. 1982, c. 622, § 64.1-62.2; 2012, c. 614.
§ 64.2-432. Certain formula clauses to be construed to refer to federal estate and generation-skipping transfer tax laws applicable to estates of decedents dying after December 31, 2009, and before January 1, 2011.
- A will, trust, or other instrument of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the “unified credit,” “estate tax exemption,” “applicable exemption amount,” “applicable credit amount,” “applicable exclusion amount,” “generation-skipping transfer tax exemption,” “GST exemption,” “marital deduction,” “maximum marital deduction,” “unlimited marital deduction,” “inclusion ratio,” “applicable fraction,” or any section of the Internal Revenue Code relating to the federal estate tax or generation-skipping transfer tax, or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate tax and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010 regardless of whether the decedent’s personal representative or other fiduciary elects not to have the estate tax apply with respect to the estate. This provision shall not apply with respect to a will, trust, or other instrument that manifests an intent that a contrary rule shall apply.
- The personal representative, trustee, other fiduciary, or any affected beneficiary under the will, trust, or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust, or other instrument be construed in a manner other than as provided in subsection A. A proceeding under this section shall be commenced prior to January 1, 2012. In such a proceeding, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust, or other instrument. The court shall have the power to modify a provision of a will, trust, or other instrument that refers to the federal estate tax or generation-skipping transfer tax laws as described in subsection A to (i) conform the terms to the decedent’s intention or (ii) achieve the decedent’s tax objectives in a manner that is not contrary to the decedent’s probable intention. The court may provide that its decision, including any decision to modify a provision of a will, trust, or other instrument, shall be effective as of the date of the decedent’s death. A person who commences a proceeding under this section has the burdens of proof, by clear and convincing evidence, and persuasion in establishing the decedent’s intention that the will, trust, or other instrument be construed in a manner other than as provided in subsection A.
- For purposes of this section, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust, or other instrument shall be construed in a manner other than as provided in subsection A, and to conform the terms of the will, trust, or other instrument to the decedent’s intention without court approval as provided in subsection B. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to § 64.2-709 . “Interested person” means any person whose consent is required in order to achieve a binding settlement were the settlement to be approved by the court.
History. 2010, c. 238, § 64.1-62.4; 2011, c. 679; 2012, c. 614; 2013, c. 784.
Editor’s note.
Acts 2013, c. 784, effective April 3, 2013, in cl. 2 provides: “That the provisions of this act shall be effective retroactively to October 1, 2012.”
The 2013 amendments.
The 2013 amendment by c. 784, effective April 3, 2013, and applies retroactively to October 1, 2012, rewrote the section.
Law Review.
For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).
For annual survey article, “Wills, Trusts, and Estates,” see 46 U. Rich. L. Rev. 243 (2011).
Article 4. Uniform International Wills Act.
§ 64.2-433. Definitions.
As used in this article:
“Authorized person” and “person authorized to act in connection with international wills” means a person who by § 64.2-441 or by the laws of the United States, including members of the diplomatic and consular service of the United States designated by Foreign Service Regulations, is empowered to supervise the execution of international wills.
“International will” means a will executed in conformity with §§ 64.2-434 through 64.2-437 .
History. 1995, c. 443, § 64.1-96.2; 2012, c. 614.
Uniform law cross references.
For other signatory state provisions, see:
Alaska: Alaska Stat. § 13.12.912 to 13.12.921.
California: California Prob. Code §§ 6380 to 6391.
Colorado: C.R.S. §§ 15-11-1001 to 15-11-1011.
Connecticut: Conn. Gen. Stat. §§ 5a-1 to 50a-9.
Delaware: 12 Del. C. §§ 251 to 259.
District of Columbia: D.C. Code §§ 18-701 to 18-710.
Hawaii: H.R.S. § 560:2-1001.
Illinois: 755 I.L.C.S. 10/0.01 to 10/10.
Minnesota: Minn. Stat. §§ 524.2-1001 to 524.2-1010.
Montana: Mont. Code Anno. §§ 72-2-901 to 72-2-910.
Nevada: Nev. Rev. Stat. Ann. §§ 133A.010 through 133A.120.
New Hampshire: R.S.A. §§ 551-A:1 to 551-A:10.
New Mexico: N.M. Stat. Ann. §§ 45.2-1001 to 45.2-1010 .
North Dakota: N.D. Cent. Code §§ 30.1-08.2-01 through 30.1-08.2-09.
Oklahoma: 84 Okl. St. §§ 350 through 859.
Oregon: ORS § 112.232.
Virgin Islands: 15 V.I.C. §§ 2-1001 through 2-1010.
Law Review.
For article, “Wills, Trusts, and Estates,” see 35 U. Rich. L. Rev. 845 (2001).
§ 64.2-434. Validity.
- A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets, and of the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of this article.
- The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.
- This article shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.
History. 1995, c. 443, § 64.1-96.3; 2012, c. 614.
§ 64.2-435. Requirements.
- The will shall be made in writing. It need not be written by the testator himself. It may be written in any language, by hand or by any other means.
- The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
- In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
- When the testator is unable to sign, the absence of his signature does not affect the validity of the international will if the testator indicates the reason for his inability to sign and the authorized person makes note thereof on the will. In these cases, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator to sign the testator’s name for him, if the authorized person makes note of this also on the will, but it is not required that any person sign the testator’s name for him.
- The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.
History. 1995, c. 443, § 64.1-96.4; 2012, c. 614.
§ 64.2-436. Other points of form.
- The signatures shall be placed at the end of the will. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.
- The date of the will shall be the date of its signature by the authorized person. That date shall be noted at the end of the will by the authorized person.
- The authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so, and at the express request of the testator, the place where he intends to have his will kept shall be mentioned in the certificate provided for in § 64.2-437 .
- A will executed in compliance with § 64.2-435 shall not be invalid merely because it does not comply with this section.
History. 1995, c. 443, § 64.1-96.5; 2012, c. 614.
§ 64.2-437. Certificate.
The authorized person shall attach to the will a certificate to be signed by him establishing that the requirements of this article for valid execution of an international will have been complied with. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate shall be substantially in the following form:
CERTIFICATE (Convention of October 26, 1973) I, (name, address and capacity), a person authorized to act in connection with international wills Certify that on (date) (place) (testator) (name, address, date and place of birth) in my presence and that of the witnesses (a) (name, address, date and place of birth) (b) (name, address, date and place of birth) has declared that the attached document is his will and that he knows the contents thereof. I furthermore certify that: (a) in my presence and in that of the witnesses (1) the testator has signed the will or has acknowledged his signature previously affixed. *(2) following a declaration of the testator stating that he was unable to sign his will for the following reason I have mentioned this declaration on the will *and the signature has been affixed by (name and address) (b) the witnesses and I have signed the will; *(c) each page of the will has been signed by and numbered; (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above; (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting; (f) the testator has requested me to include the following statement concerning the safekeeping of his will: PLACE OF EXECUTION DATE SIGNATURE and, if necessary, SEAL. * to be completed if appropriate
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History. 1995, c. 443, § 64.1-96.6; 2012, c. 614.
§ 64.2-438. Effect of certificate.
In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this article. The absence or irregularity of a certificate shall not affect the formal validity of a will under this article.
History. 1995, c. 443, § 64.1-96.7; 2012, c. 614.
§ 64.2-439. Revocation.
The international will shall be subject to the ordinary rules of revocation of wills.
History. 1995, c. 443, § 64.1-96.8; 2012, c. 614.
§ 64.2-440. Source and construction.
Sections 64.2-433 through 64.2-439 derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and applying this article, regard shall be had to its international origin and to the need for uniformity in its interpretation.
History. 1995, c. 443, § 64.1-96.9; 2012, c. 614.
§ 64.2-441. Persons authorized to act in relation to international will; eligibility; recognition by authorizing agency.
Individuals who have been admitted to practice law before the courts of the Commonwealth and who are members in good standing of the Virginia State Bar are hereby declared to be authorized persons in relation to international wills.
History. 1995, c. 443, § 64.1-96.10; 2012, c. 614.
§ 64.2-442. International will information registration.
The Secretary of the Commonwealth shall establish a registry system by which authorized persons may register in a central information center, information regarding the execution of international wills, keeping that information in strictest confidence until the death of the testator and then making it available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator’s death to the center. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the name, social security or any other individual-identifying number established by law, address, and date and place of birth of the testator, and the intended place of deposit or safekeeping of the instrument pending the death of the testator. The Secretary of the Commonwealth, at the request of the authorized person, may cause the information he receives about execution of any international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in the Commonwealth.
History. 1995, c. 443, § 64.1-96.11; 2001, c. 85; 2012, c. 614.
Article 5. Probate.
§ 64.2-443. Jurisdiction of probate of wills.
- The circuit courts shall have jurisdiction of the probate of wills. 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.
- Where any person has become, either voluntarily or involuntarily, a patient in a nursing home, convalescent home, or similar institution due to advanced age or impaired health, the place of legal residence of the person shall be rebuttably presumed to be the same as it was before he became a patient.
History. Code 1950, §§ 64-72, 64-72.1; 1966, c. 330; 1968, c. 656, §§ 64.1-75, 64.1-76; 2012, c. 614.
Cross references.
As to jurisdiction of clerk or court to appoint administrator, see § 64.2-502 .
Law Review.
For note on the effect of probate decrees of distribution on future interests, see 18 Wash. & Lee L. Rev. 305 (1961).
Research References.
Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 14 Suits to Impeach or Establish Wills. 14.04 Statutory Provisions. Cox.
CASE NOTES
Editor’s note.
The cases below were decided under prior law.
Probate is wholly dependent on statute. —
The whole subject of probate of wills rests upon and is regulated by statute law, and the courts, in admitting a will to probate, are confined to the simple question, whether the paper admitted to probate is the true last will and testament of the deceased, and their jurisdiction cannot be extended further, for the jurisdiction of a court to probate is not to ascertain and enforce rights of property, but to establish, preserve and perpetuate an important muniment of title. Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 , 1914 Va. LEXIS 27 (1914) (see Coalter’s Ex’r v. Bryan, 42 Va. (1 Gratt.) 18 (1844); Lamberts v. Cooper’s Ex’r, 70 Va. (29 Gratt.) 61 (1877); Kirby v. Kirby, 84 Va. 627 , 5 S.E. 539 (1888)).
A probate court is a special tribunal of limited and strictly construed jurisdiction and has no powers other than those expressly conferred by the statute creating it. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
What constitutes “estate” within meaning of section. —
A deposit to the credit of decedent in a bank, United States Savings Bonds and Treasury Bonds found in the lockbox in that bank, and the location in the same city of a partnership business in which decedent was interested, constituted “estate” within the meaning of this section such as to give the lower court jurisdiction to entertain a proceeding to admit decedent’s will to probate. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672, 1961 Va. LEXIS 134 (1961).
This section contemplates four distinct conditions, each of which would confer jurisdiction, and none of which depends upon legal domicile as distinguished from residence: (a) The decedent may have a mansion house, which implies residence, and if he has a mansion house which is his residence, the court of the county in which that mansion house is located has jurisdiction; (b) the decedent may have no mansion house, and yet he may live with a friend or relative, or in a boardinghouse, and so have a known place of residence, and the establishment of this fact gives jurisdiction to the court of that locality; (c) the section contemplates that the decedent may have neither such a mansion nor such a place of residence, and then the court of the county or corporation wherein any of his real estate lies has jurisdiction to appoint his administrator; (d) if neither of these conditions appears, then the court of the county or corporation in which the decedent dies or has estate may appoint his administrator. Wilkinson v. Spiller, 143 Va. 267 , 129 S.E. 235 , 1925 Va. LEXIS 264 (1925).
“Known place of residence” construed. —
A soldier, not originally a resident of Roanoke, married in that city, and after the marriage, so long as he remained in Roanoke, regarded the home of his mother-in-law, with whom his wife resided, as his home. Prior to the marriage he agreed with his future wife that he would make Roanoke his home after his discharge from military service. Shortly after the marriage he went with his company to France. His wife remained in Roanoke with her mother, and in letters from France he reiterated his purpose of returning to live there permanently. It was held that the soldier was a resident of Roanoke within this section, conferring jurisdiction of the probate of wills on the circuit and corporation courts in the county or corporation wherein the decedent had a “known place of residence.” Rice v. Freeland, 131 Va. 298 , 109 S.E. 186 , 1921 Va. LEXIS 24 (1921).
A probate court is authorized to determine where a decedent was domiciled at his death when the proceeding is initiated under this section. French v. Short, 207 Va. 548 , 151 S.E.2d 354, 1966 Va. LEXIS 258 (1966).
Probate of wills of persons domiciled outside Virginia. —
This section makes no distinction between the probate of wills of persons domiciled in Virginia and the probate of wills of persons domiciled outside Virginia. French v. Short, 207 Va. 548 , 151 S.E.2d 354, 1966 Va. LEXIS 258 (1966).
Where general jurisdiction exists probate is not void. —
The fact that the court had no jurisdiction to admit a particular will to probate will not render a judgment admitting it to probate void, the court having jurisdiction over the subject of admitting wills to probate. Fisher v. Bassett, 36 Va. (9 Leigh) 119, 1837 Va. LEXIS 65 (1837); Hutcheson v. Priddy, 53 Va. (12 Gratt.) 85, 1855 Va. LEXIS 8 (1855) (see Burnley’s Representatives v. Duke, 41 Va. (2 Rob.) 102 (1843)).
There is no statute placing any limitation of time upon the probate of a will. Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 , 1919 Va. LEXIS 4 (1919) (see note of this case under § 64.1-95).
A will devising lands lying in Virginia, may be proved in Virginia, although declared void in some other of the United States. Rice v. Jones, 8 Va. (4 Call) 89, 1786 Va. LEXIS 3 (1786).
Situs of debt due decedent is residence or location of debtor. —
Generally for probate purposes, under statutes such as this section, which gives jurisdiction to a court of the locality wherein a decedent “has estate,” the situs of a debt due the decedent is the residence or location of the debtor. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672, 1961 Va. LEXIS 134 (1961).
This section establishes no mandatory duty in original proceedings to probate a foreign will because there are assets in the jurisdiction, absent special circumstances such as existence of real estate or creditors in Virginia. Hence where the proper court of decedent’s domicile had assumed jurisdiction the lower court did not abuse its discretion in refusing probate. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672, 1961 Va. LEXIS 134 (1961).
Jurisdiction of federal court sitting in State. —
Since the legislature of Virginia has not chosen to make probate a part of the general equity jurisdiction of the courts of Virginia, a federal court sitting in the State will be limited in the same manner as the State equity court. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
Jurisdiction of a court of probate does not extend to the ascertainment and enforcement of rights of property, but only to establish, preserve and perpetuate an important muniment of title. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292, 1977 Va. LEXIS 269 (1977).
Circuit court orders not subject to collateral attack. —
A circuit court is a court of general jurisdiction regarding probate and the grant of administration of estates and even if it errs in taking jurisdiction in a particular case, the order generally is not void, but only voidable and cannot be questioned in any collateral proceeding. Bolling v. D'Amato, 259 Va. 299 , 526 S.E.2d 257, 2000 Va. LEXIS 51 (2000).
Jurisdiction of county commissioner of accounts. —
County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner’s authority to assist the circuit court with the settlement of estates was an extension of the circuit court’s subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).
Will construction. —
Ordinarily, the subject of will construction is beyond the province and jurisdiction of the probate court in the probate proceeding. In some cases, however, it is necessary and proper for the probate court to construe the document in order to determine questions such as whether the instrument is testamentary in character. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292, 1977 Va. LEXIS 269 (1977).
The courts, trial and appellate, in the exercise of their probate jurisdiction, are strictly and severely limited to deciding the question whether or not the paper was the will of the decedent. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292, 1977 Va. LEXIS 269 (1977).
****MISSING CATCHLINE**** State court litigation that involved a dispute over a will and administration of an estate would in no way interfere with the bankruptcy case and predominant questions of state law would be better addressed in state court; furthermore, §§ 64.1-75 and 64.1-88 established jurisdiction for plaintiff’s action in state court. Keane v. Keane (In re Keane), No. 02-64778-T, No. 02-6919-T, 2003 Bankr. LEXIS 1555 (Bankr. E.D. Va. Jan. 27, 2003).
CIRCUIT COURT OPINIONS
Administrator lacked capacity to accept service of process. —
Defendant’s motion to quash service of process of a motion for judgment on the ground that the administrator who accepted service of process did not have authority to do so as her qualification was pursuant to § 8.01-50 , not § 64.1-75, was properly granted because, while the administrator intended to qualify in order to accept service of process, she did not do so, and she, not the clerk, bore the responsibility for this mistake. Thus, there was, in fact, no error or oversight to correct, as contemplated by § 8.01-428 . Blick v. Fant, 70 Va. Cir. 76, 2005 Va. Cir. LEXIS 292 (Greensville County Oct. 14, 2005) (decided under prior law).
§ 64.2-444. Clerks may probate wills.
- The clerk of any circuit court, or any duly qualified deputy of such clerk, may admit wills to probate, appoint and qualify executors, administrators, and curators of decedents, and require and take from them the necessary bonds, in the same manner and with like effect as the circuit court.
- The clerk shall keep an order book, in which shall be entered all orders made by him, or his deputy, in performance of his duties pursuant to subsection A, except probate orders that are recorded in the will book need not be entered in the order book.
- All wills heretofore admitted to probate by any duly qualified deputy clerk of any circuit court are deemed to have been properly admitted to probate to the same extent as if the clerk had acted in the proceeding.
History. Code 1950, § 64-73; 1968, c. 656, § 64.1-77; 1973, c. 217; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For article, “Justice and Efficiency Under a Model of Estate Settlement,” see 66 Va. L. Rev. 727 (1980).
For note, “Constitutionality of Notice in Virginia Probate and Estate Administration,” see 42 Wash. & Lee L. Rev. 1325 (1985).
For note, “An Analysis of the Virginia Wills Act Formalities and the Need for a Dispensing Power Statute in Virginia,” see 50 Wash. & Lee L. Rev. 1145 (1993).
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Executors and Administrators, § 29.
CASE NOTES
Editor’s note.
The cases below were decided under prior law.
Judgment of clerk is judgment in rem. —
The judgment of the clerk of a circuit court appointing an administrator is a judgment in rem, whose validity can only be questioned in the manner provided for by the following section. Beavers v. Beavers, 185 Va. 418 , 39 S.E.2d 288, 1946 Va. LEXIS 212 (1946).
In admitting a will to probate the clerk acts in a judicial capacity and the order made by him, admitting or rejecting a will, is as much a judgment as though entered by the court. His judgment is a judgment in rem whose validity can be drawn in question only in the manner and within the time prescribed by law. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968); Conrad v. Carter, 224 Va. 485 , 297 S.E.2d 706, 1982 Va. LEXIS 318 (1982).
It is well settled in this jurisdiction and elsewhere that an order or judgment of a clerk, or court having jurisdiction of the matter, admitting a paper to probate is a judgment in rem, binding not only the immediate parties to the proceeding in which the order is had, but all other persons and all other courts with respect to property within the jurisdiction of the probate court. Such an order of probate cannot be attacked collaterally and can be assailed only in the manner provided by law. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968).
Effect of clerk’s order admitting paper to probate. —
The clerk’s order admitting the paper to probate as the true last will and testament of the testatrix was an adjudication not only that the will was duly executed, but of all other questions necessary to the validity of the testamentary act. It was necessarily a finding that the paper was testamentary in character, for without such finding it could not have been admitted to probate as “the true last will and testament” of testator. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968).
Demurrer as collateral attack on order of probate. —
In a suit to construe a holographic will that had been admitted to probate by the clerk of the probate court, the lower court erred in sustaining a demurrer and dismissing the bill of complaint upon the stated holding “that the paper writing admitted to probate lacks testamentary intent.” The court was without authority or jurisdiction to entertain the demurrer, which constituted a collateral attack on the order of probate. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968).
The clerk properly admitted to probate only the undeleted portions of a holographic will, for the testator could change a holographic will as he chose and there was nothing equivocal about his act in the instant case, it being his clear intent to cancel the bequests to the persons whose names were deleted. Sheltering Arms Hosp. v. First & Merchants Nat'l Bank, 199 Va. 524 , 100 S.E.2d 721, 1957 Va. LEXIS 221 (1957).
There is no limitation of time on the probate of a will. —
Bliss v. Spencer, 125 Va. 36 , 99 S.E. 593 (1919). As to protection of bona fide purchasers, see § 64.1-95 .
Alternative pleading permitted. —
Because a stepmother essentially sought alternative theories of recovery, as prescribed by Va. Sup. Ct. R. 1:4(k), and §§ 64.1-77 and 64.1-88, the trial court properly denied the children’s motion to dismiss her appeal of a clerk’s order concerning a 1995 will based on allegations of approbation and reprobation on her part. Matthews v. Matthews, 277 Va. 522 , 675 S.E.2d 157, 2009 Va. LEXIS 58 (2009).
§ 64.2-445. Appeal from order of clerk.
Any person interested in the probate of the will may appeal any order entered pursuant to § 64.2-444 within six months after the entering of such an order, without giving any bond, to the circuit court whose clerk, or deputy, has made the order. Upon application for such appeal, the clerk or deputy shall enter forthwith in his order or will book an order allowing such appeal. The appeal shall be given precedence on the court’s docket. The matter shall be heard de novo by the court and a copy of its final order shall be entered into the clerk’s order or will book. At any time after such appeal is allowed, the court may enter an order for the protection of the persons interested in the probate of the will or for the protection or preservation of any property involved as it finds necessary.
History. Code 1950, § 64-74; 1968, c. 656, § 64.1-78; 2012, c. 614.
Law Review.
For note, “Constitutionality of Notice in Virginia Probate and Estate Administration,” see 42 Wash. & Lee L. Rev. 1325 (1985).
Michie’s Jurisprudence.
For related discussion, see 8A M.J. Executors and Administrators, § 29.
CASE NOTES
Editor’s note.
The cases below were decided under prior law.
Section applies to probate of will theretofore probated in another state. —
The provisions of this section apply to the probate of a copy of a will theretofore probated in another state as well as the probate of a domestic will. Horn v. Horn, 195 Va. 912 , 81 S.E.2d 593, 1954 Va. LEXIS 169 (1954).
Words “such an order” include any order entered by the clerk or his deputy in the performance of the duties authorized by § 64.1-77, and in the manner therein directed, whether it relates to the probate of a domestic will under the authority of that section, or to the copy of a foreign will under the authority of § 64.1-92. Horn v. Horn, 195 Va. 912 , 81 S.E.2d 593, 1954 Va. LEXIS 169 (1954).
Virginia statutes provide two ways in which an order of probate may be assailed and a proper attack must follow one of them. Under this section “Any person interested may, within six months after the entering of such an order, appeal therefrom as a matter of right . . . to the court whose clerk, or deputy, has made the order.” The statute further provides that in such a proceeding the court shall hear and determine the matter as though it had been presented to it in the first instance. Under § 64.1-88 a person interested, who was not a party to the probate proceeding, may proceed by a bill in equity to impeach or establish the will. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968).
Proceeding is in the nature of an appeal. —
The right of appeal under this section is more in the nature of an appeal than a writ of error. It is assimilated to an appeal in that there is a continuation of the same case upon the same evidence, and the case is simply heard de novo in the higher tribunal. Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 , 1914 Va. LEXIS 27 (1914).
Court hears and determines matter de novo. —
On appeal under this section, the court takes jurisdiction and hears and determines “the matter as though it had been presented to said court in the first instance.” All appropriate remedies provided by law with respect to the probate of wills by courts may then be called into activity, and all rights and reservations which pertain to such case are preserved. Saunders v. Link, 114 Va. 285 , 76 S.E. 327 , 1912 Va. LEXIS 137 (1912).
On appeal from the clerk’s order the lower court hears the matter de novo and consequently the propriety of its ruling is to be determined as of the time of that hearing. Dominion Nat'l Bank v. Jones, 202 Va. 502 , 118 S.E.2d 672, 1961 Va. LEXIS 134 (1961).
Where on appeal the proponent of the will offered no evidence of its valid execution, probate was properly denied, since the cause was heard de novo. Horn v. Horn, 195 Va. 912 , 81 S.E.2d 593, 1954 Va. LEXIS 169 (1954).
But appeal is not “new suit” within § 8.01-229 . —
The appeal is not the bringing of a “new suit,” but a prolongation and continuance of the old one, and hence the time for taking the appeal prescribed by this section is not extended by the provisions of § 8.01-229 giving an extension in certain cases “if there be occasion to bring a new suit.” Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 , 1914 Va. LEXIS 27 (1914).
Appeal is perfected upon entry of order by clerk. —
Upon an application for an appeal the clerk is required to enter forthwith an order allowing the appeal. When this is done the appeal is perfected. Convening the other interested parties before the court is accomplished after the appeal has been perfected. Blalock v. Riddick, 186 Va. 284 , 42 S.E.2d 292, 1947 Va. LEXIS 151 (1947).
Any interested party may demand a jury. —
In every proceeding relating to the probate of a will, whether it be a proceeding on an appeal from the action of a clerk of a court in admitting a will to probate or whether it has reference to a motion made to the court in the first instance to probate a will, any interested party may demand a jury trial. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 , 1924 Va. LEXIS 158 (1924).
Sole issue is whether paper is decedent’s will. —
The sole issue is whether the paper offered for probate is or is not the will of the decedent. When this question is decided the function of the proceeding is exhausted, and the court should not decide other questions not connected with that issue. Eason v. Eason, 204 Va. 347 , 131 S.E.2d 280, 1963 Va. LEXIS 155 (1963).
Hence, proceeding is not res judicata as to other issues. —
A proceeding under this section was not res judicata with respect to a later suit for specific performance of certain agreements allegedly made by decedent. Evidence relating to the release of such agreements was introduced in the probate proceeding, but the issues relating to the agreements were not actually litigated and determined. Eason v. Eason, 204 Va. 347 , 131 S.E.2d 280, 1963 Va. LEXIS 155 (1963).
Jurisdiction of a court of probate does not extend to the ascertainment and enforcement of rights of property, but only to establish, preserve and perpetuate an important muniment of title. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292, 1977 Va. LEXIS 269 (1977).
Will construction. —
Ordinarily, the subject of will construction is beyond the province and jurisdiction of the probate court in the probate proceeding. In some cases, however, it is necessary and proper for the probate court to construe the document in order to determine questions such as whether the instrument is testamentary in character. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292, 1977 Va. LEXIS 269 (1977).
The courts, trial and appellate, in the exercise of their probate jurisdiction, are strictly and severely limited to deciding the question whether or not the paper was the will of the decedent. Smith v. Mustian, 217 Va. 980 , 234 S.E.2d 292, 1977 Va. LEXIS 269 (1977).
As to apportionment of costs in a proceeding brought under this section, see Bowen v. Bowen, 122 Va. 1 , 94 S.E. 166 , 1917 Va. LEXIS 77 (1917).
§ 64.2-446. Motion for probate; process against persons interested in probate.
- A person offering, or intending to offer, to a circuit court or to the clerk of the circuit court a will for probate, may request that the clerk of such court summon any person interested in the probate of the will to appear to show cause why the will should not be admitted to probate. Upon such request, the clerk shall, or in the absence of such request the court may, summon all persons interested in the probate of the will to appear to show cause why the will should not be admitted to probate.
- The court shall hear the motion to admit the will to probate when all persons interested in the probate of the will have been summoned or otherwise appear as parties. Upon the request of any person interested in the probate of the will, the court shall order a trial by jury to ascertain whether any paper produced is the will of the decedent. The court shall enter a final order as to the probate.
- In the absence of a request that the clerk summon any person interested in the probate of the will to appear to show cause why the will should not be admitted to probate, the court in which the will is offered for probate may proceed to admit or reject the will without summoning any party.
History. Code 1950, §§ 64-75, 64-76, 64-78, 64-79, 64-81; 1968, c. 656, §§ 64.1-79, 64.1-80, 64.1-82, 64.1-83, 64.1-85; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For article, “Justice and Efficiency Under a Model of Estate Settlement,” see 66 Va. L. Rev. 727 (1980).
For note, “Constitutionality of Notice in Virginia Probate and Estate Administration,” see 42 Wash. & Lee L. Rev. 1325 (1985).
For note, “An Analysis of the Virginia Wills Act Formalities and the Need for a Dispensing Power Statute in Virginia,” see 50 Wash. & Lee L. Rev. 1145 (1993).
CASE NOTES
Editor’s note.
The cases below were decided under prior law.
Section is mandatory as to jury trial. —
This section giving a right of trial by jury is manifestly intended to be put on the same plane as § 64.1-88, wherein it is provided, “a person interested . . . may proceed by bill in equity to impeach or establish a will, on which bill a trial by jury shall be ordered.” McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 , 1924 Va. LEXIS 158 (1924).
This section evinces the legislative purpose and intent that the issue of devisavit vel non shall be submitted to a jury if desired. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151, 1950 Va. LEXIS 146 (1950).
And any interested party may demand a jury. —
In every proceeding relating to the probate of a will whether it be an appeal from the action of the clerk of a court in admitting a will to probate or whether it has reference to a motion made to the court in the first instance to probate a will, an interested party may demand the jury, and an heir at law is an interested party. This section is mandatory and deprives the court of all discretion when a request for a jury is made. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 , 1924 Va. LEXIS 158 (1924).
Mode of proceeding is as for trial of issue devisavit vel non. —
Upon the trial provided by this section the mode of proceeding is substantially the same as the trial of an issue devisavit vel non. In other words the question involved should be tried as is now provided by statute for the trial of civil cases by a jury. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 , 1924 Va. LEXIS 158 (1924).
Finality of verdict. —
Where the case has been fairly presented and there is credible evidence to support the conclusion reached by the jury, neither the trial court nor the Supreme Court may disturb the verdict. Eason v. Eason, 203 Va. 246 , 123 S.E.2d 361, 1962 Va. LEXIS 134 (1962).
Determination of testamentary capacity; res adjudicata. —
The effect of this section and § 64.1-88 is that an interested party may have the actual mental capacity of a testator to make a will factually decided through the procedure afforded in this chapter, and that right cannot be foreclosed by estoppel of record or rendered res adjudicata in any judicial or quasi-judicial proceeding to which such interested person may be a party, other than by one of probate. The issue of whether or not a testator had mental capacity to make a particular will can be rendered res adjudicata in a probate proceeding and none other. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151, 1950 Va. LEXIS 146 (1950); Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
Trial of the rights of all interested parties in one proceeding was expressly allowed by this section, where two wills executed by testatrix were involved and her testamentary capacity at the time of the execution of the second will was the dominant issue. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151, 1950 Va. LEXIS 146 (1950).
CIRCUIT COURT OPINIONS
Notice. —
Although a party moved to set aside the appointment of the administrator of the estate of the decedent, because the pleadings did not establish actual notice of an attempt to probate the decedent’s purported will, and actual notice would not have equated to an appearance in any event, the administrator of the estate of the decedent could proceed in the administrator’s attempt to impeach the will. Pouncy v. Melvin, 105 Va. Cir. 477, 2020 Va. Cir. LEXIS 126 (Chesapeake Aug. 12, 2020).
§ 64.2-447. Use of depositions.
- The deposition of a witness who subscribed a will attesting that the will is the will of the testator, or in the case of a holographic will, a witness attesting that the will is wholly in the handwriting of the testator, may be admitted as evidence to prove the will if the witness (i) resides outside of the Commonwealth or (ii) resides in the Commonwealth but is unable to testify for any reason before the court or clerk where the will is offered. For the purpose of taking such depositions, the person offering the will for probate shall be permitted to withdraw the will temporarily, leaving an attested copy with the court or clerk, or the clerk may give such person a certified copy of the will.
- The deposition of such witnesses shall be taken and certified in accordance with § 8.01-420.4 and the Rules of Supreme Court of Virginia, except that no notice of the time and place of taking the deposition need be given unless the probate is opposed by some person interested in the probate of the will. Such deposition may be taken prior to the time that the will is offered for probate and may be filed at the same time the will is offered for probate, provided, that if probate is opposed by some person interested in the probate of the will, such person shall have the right to examine such witness.
History. Code 1950, § 64-83; 1966, c. 314; 1968, c. 656, § 64.1-87; 1981, c. 183; 2012, c. 614.
Cross references.
As to pretrial procedures, depositions, and production at trial, see Rule 4:0 et seq.
Law Review.
For article reviewing recent legislative and judicial developments in the Virginia law of wills, trusts, and estates, see 68 Va. L. Rev. 521 (1982).
§ 64.2-448. Complaint to impeach or establish a will; limitation of action; venue.
- A person interested in the probate of the will who has not otherwise been before the court or clerk in a proceeding to probate the will pursuant to § 64.2-444 or in an ex parte proceeding to probate the will pursuant to subsection B of § 64.2-446 may file a complaint to impeach or establish the will within one year from the date of the order entered by the court in exercise of its original jurisdiction or after an appeal of an order entered by the clerk, or, if no appeal from an order entered by the clerk is taken, from the date of the order entered by the clerk.
- A person interested in the probate of the will who had been proceeded against by an order of publication pursuant to subsection B of § 64.2-449 may file a complaint to impeach or establish the will within two years from the date of the order entered by the court in the exercise of its original jurisdiction, unless he actually appeared as a party or had been personally served with a summons to appear.
- A person interested in the probate of the will who has not otherwise been before the court and who was a minor at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person reaches the age of maturity or is judicially declared emancipated.
- A person interested in the probate of the will who has not otherwise been before the court and who was incapacitated at the time of the order pursuant to § 64.2-444 or 64.2-446 may file a complaint to impeach or establish the will within one year after such person is restored to capacity.
- Upon the filing of a complaint to impeach or establish the will pursuant to this section, the court shall order a trial by jury to ascertain whether what was offered for probate is the will of the testator. The court may require all testamentary papers of the testator be produced and direct the jury to ascertain whether any paper produced is the will of the testator. The court shall decide whether to admit the will to probate.
- The venue for filing a complaint to impeach or establish the will shall be as specified in subdivision 7 of § 8.01-261 .
- Subject to the provisions of § 8.01-428 , a final order determining whether to admit a will to probate bars any subsequent complaint to impeach or establish a will.
History. Code 1950, §§ 64-80, 64-84 through 64-86; 1968, c. 656, §§ 64.1-84, 64.1-88 through 64.1-90; 1972, c. 825; 1977, c. 624; 1996, c. 58; 2012, c. 614.
Law Review.
For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).
For survey of Virginia law on wills, trusts and estates for the year 1969-1970, see 56 Va. L. Rev. 1559 (1970).
For note, “Constitutionality of Notice in Virginia Probate and Estate Administration,” see Wash. & Lee L. Rev. 1325 (1985).
CASE NOTES
Analysis
- I. General Consideration.
- II. Nature of Jurisdiction.
- III. Parties.
- IV. Trial of Issue Devisavit Vel Non.
- V. Effect of Order for Probate.
I.General Consideration.
Editor’s note.
The cases below were decided under prior law.
For the history of former provisions, see Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 , 1933 Va. LEXIS 199 (1933).
This section provides a saving for nonresidents and persons under disabilities. In re Will of Bentley, 175 Va. 456 , 9 S.E.2d 308, 1940 Va. LEXIS 191 (1940).
This section confers both a right of action and remedy. Ferguson v. Ferguson, 169 Va. 77 , 192 S.E. 774 , 1937 Va. LEXIS 158 (1937).
Virginia statutes provide two ways in which an order of probate may be assailed and a proper attack must follow one of them. Under § 64.1-78 “Any person interested may, within six months after the entering of such an order, appeal therefrom as a matter of right . . . to the court whose clerk, or deputy, has made the order.” The statute further provides that in such a proceeding the court shall hear and determine the matter as though it had been presented to it in the first instance. Under this section a person interested, who was not a party to the probate proceeding, may proceed by a bill in equity to impeach or establish the will. First Church of Christ, Scientist v. Hutchings, 209 Va. 158 , 163 S.E.2d 178, 1968 Va. LEXIS 209 (1968).
Section presupposes that will in question was offered for probate. —
The provisions of this section that “a person interested, who was not a party to the proceeding may proceed by bill in equity to impeach or establish the will” contemplates and presupposes, as does the limitation found in § 64.1-89, that “the will” in question was offered for probate to the court or clerk. It does not mean that some will other than that tendered may not be probated when more than a year has elapsed after the entry of an order allowing or refusing probate of a different will. Nor does it state or mean that a lost will may not be established in a court of equity under its general equity jurisdiction. Hawkins v. Tampa, 197 Va. 22 , 87 S.E.2d 636, 1955 Va. LEXIS 190 (1955).
The suit authorized is merely a continuation of the probate proceedings before the judge and is therefore a matter over which federal courts have no jurisdiction. Guilfoil v. Hayes, 86 F.2d 544, 1936 U.S. App. LEXIS 3784 (4th Cir. 1936), cert. denied, 300 U.S. 669, 57 S. Ct. 511, 81 L. Ed. 876, 1937 U.S. LEXIS 209 (1937).
Probate is a judgment in rem, which cannot be collaterally attacked, but only assailed in the manner provided by statute. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
“Decree or order under § 64.1-85 or under § 64.1-77.” —
This section permits the filing of a bill to impeach or establish a will only after a decree or order has been entered under § 64.1-85 or under § 64.1-77. Section 64.1-85 authorizes a court to probate a will or reject a will from probate in an ex parte proceeding. The court may do so either on original presentation or on appeal from a clerk’s order. Section 64.1-77 authorizes a clerk to probate a will or reject a will from probate in an ex parte proceeding. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
This section, which designates the courts having jurisdiction to entertain suits under § 64.1-88 and prescribes the time-limitation for instituting such suits, also refers to the decree or order made by the court or clerk, that is, to an order entered under § 64.1-85 or § 64.1-77. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
Consent of some, but not all, heirs and distributees. —
The court should not have probated the decedent’s will on the basis of the consent of some, but not all, of the decedent’s heirs and distributees. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
Section 8.01-322 . —
Section 8.01-322 , which permits a direct attack by a party served by publication who did not appear, does not require a petitioner to allege or prove misrepresentation, fraud, or deceit as a condition to his right to a rehearing. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
Section 8.01-322 permits a court upon a rehearing to correct “any injustice in the proceedings.” An injustice was done to the petitioners and to other heirs and distributees who were not parties to a compromise agreement in a suit under this section. By the compromise agreement the parties sought to settle a suit to impeach the decedent’s will, which suit if successful would have resulted in benefits for all the decedent’s heirs and distributees. But the compromise agreement provided that certain heirs and distributees, parties to the agreement, should receive shares of the decedent’s estate and that the balance of her estate should be distributed in accordance with the will. The agreement was unjust because it benefited the heirs and distributees who were parties to the agreement, but provided no benefit for the other heirs and distributees. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
Extrinsic evidence. —
Where the words of a will are plain, clear and unambiguous, extrinsic evidence shall not be considered. Virginia Nat'l Bank v. United States, 307 F. Supp. 1146, 1969 U.S. Dist. LEXIS 13372 (E.D. Va. 1969), aff'd, 443 F.2d 1030, 1971 U.S. App. LEXIS 9598 (4th Cir. 1971).
Alternative pleading permitted. —
Because a stepmother essentially sought alternative theories of recovery, as prescribed by Va. Sup. Ct. R. 1:4(k), and §§ 64.1-77 and 64.1-88, the trial court properly denied the children’s motion to dismiss her appeal of a clerk’s order concerning a 1995 will based on allegations of approbation and reprobation on her part. Matthews v. Matthews, 277 Va. 522 , 675 S.E.2d 157, 2009 Va. LEXIS 58 (2009).
This section modifies §§ 64.1-88 and 64.1-89 as well as § 64.1-84 by permitting an interested person, who “at the time of the sentence (now ‘decree’) or order” was an infant or of unsound mind, to bring a suit devisavit vel non within one year after he becomes of age or is restored to sanity, and by permitting an interested person, who “at that time” was a nonresident or was proceeded against by order of publication, to bring a suit devisavit vel non within two years “after such sentence (now ‘decree’) or order.” The quoted words refer back to the time of a sentence (decree) or order mentioned in § 64.1-88, that is, to a sentence (decree) or order entered ex parte by the court (§ 64.1-85) or by the clerk (§ 64.1-77). Those words do not refer to a decree entered by a court probating or rejecting a will in a suit devisavit vel non. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
“Person interested.” —
The term “person interested” means that an individual must have a legally ascertainable, pecuniary interest, which will be impaired by probating a will or benefited by setting aside the will, and not a mere expectancy. Martone v. Martone, 257 Va. 199 , 509 S.E.2d 302, 1999 Va. LEXIS 5 (1999).
II.Nature of Jurisdiction.
Method and right of impeaching a will. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327, 1939 Va. LEXIS 247 (1939).
The method and right of impeaching a will depends on the procedure and law as set forth in the Virginia Code. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
Courts of equity have no inherent jurisdiction to set aside wills on the ground of fraud, undue influence, or lack of testamentary capacity on the part of the testator. Jurisdiction of these questions is to be found solely in this section. Queensbury v. Vial, 123 Va. 219 , 96 S.E. 173 , 1918 Va. LEXIS 21 (1918) (see Hart v. Darter, 107 Va. 310 , 58 S.E. 590 (1907); Meade v. Meade, 111 Va. 451 , 69 S.E. 330 (1910); Eyber v. Dominion Nat’l Bank, 249 F. Supp. 531 (W.D. Va. 1966)).
The only jurisdiction in courts of equity to hear a suit to impeach a will is that conferred by this section. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327, 1939 Va. LEXIS 247 (1939).
And court can exercise only powers granted herein. —
In a proceeding under this section the court can only exercise the special powers provided herein; no other relief can be had in the case. Harris v. Wyatt, 113 Va. 254 , 74 S.E. 189 , 1912 Va. LEXIS 31 (1912).
Court is more than a court of probate. —
The court in which a bill is filed under this section to impeach or establish a will is not a mere court of probate, but something more. It is a court of equity, and though its powers over the subject confided to it are limited, it may on a proper bill, review and correct errors in its proceedings after final decree in the cause. Connolly v. Connolly, 73 Va. (32 Gratt.) 657, 1880 Va. LEXIS 89 (1880).
And jurisdiction of courts of probate differs from that of other civil tribunals, in that its province is not to ascertain and enforce the rights of property, but to establish, preserve and perpetuate some important muniment of title. Potts v. Flippen, 171 Va. 52 , 197 S.E. 422 , 1938 Va. LEXIS 255 (1938), cert. denied, 305 U.S. 662, 59 S. Ct. 364, 83 L. Ed. 429, 1939 U.S. LEXIS 908 (1939).
Federal courts do not assume jurisdiction of matters which are probate in nature, even though diversity of citizenship and the requisite jurisdictional amount may be present. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
Federal courts have no jurisdiction of suit authorized by this section. Guilfoil v. Hayes, 86 F.2d 544, 1936 U.S. App. LEXIS 3784 (4th Cir. 1936), cert. denied, 300 U.S. 669, 57 S. Ct. 511, 81 L. Ed. 876, 1937 U.S. LEXIS 209 (1937).
Relief from bankruptcy automatic stay was granted. —
State court litigation that involved a dispute over a will and administration of an estate would in no way interfere with the bankruptcy case and predominant questions of state law would be better addressed in state court; furthermore, §§ 64.1-75 and 64.1-88 established jurisdiction for plaintiff’s action in state court. Keane v. Keane (In re Keane), No. 02-64778-T, No. 02-6919-T, 2003 Bankr. LEXIS 1555 (Bankr. E.D. Va. Jan. 27, 2003).
Limitation is of right as well as remedy. —
The right to impeach a will was created by the same statute which prescribed a special limitation upon that right—the time within which such right can be exercised; thus, the limitation in this section is of the right as well as of the remedy, and does not constitute a pure statute of limitations—one affecting the remedy only. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327, 1939 Va. LEXIS 247 (1939).
It may be taken advantage of by demurrer. —
In a suit to impeach a will, the limitation provided in this section may be taken advantage of by a demurrer to the bill. Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327, 1939 Va. LEXIS 247 (1939).
New grounds in amended complaint allowed. —
The contestants, having timely filed their original bill, could raise “new grounds” in an amended bill after the one-year time limit provided that the new grounds would not constitute a new and separate cause of action. Carter v. Williams, 246 Va. 53 , 431 S.E.2d 297, 9 Va. Law Rep. 1438, 1993 Va. LEXIS 104 (1993).
Amendment held not retroactive. —
There was nothing in the language of an amendment to this section reducing the time limit to declare or to indicate that the legislature intended to give to it a retroactive operation. Ferguson v. Ferguson, 169 Va. 77 , 192 S.E. 774 , 1937 Va. LEXIS 158 (1937).
No authority to institute suit after earlier decree. —
The right to institute a suit devisavit vel non and the jurisdiction of a court to entertain such a suit do not exist independently of the statutory authorization contained in this section and §§ 64.1-89 and 64.1-90. Nothing in these sections authorizes the institution or entertaining of a suit devisavit vel non after a court has entered a decree probating or rejecting a will in an earlier suit devisavit vel non instituted under this section. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
This section did not authorize the petitioners to institute a suit devisavit vel non after the entry of a decree in a suit probating the decedent’s will. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
III.Parties.
“Proceeding” includes order admitting or rejecting will. —
The term “proceeding” as used in this section refers to the entire proceeding, including the order admitting the will to probate or rejecting it. McGlothlin v. Keen, 140 Va. 84 , 124 S.E. 451 , 1924 Va. LEXIS 158 (1924); Dillard v. Dillard, 78 Va. 208 , 1883 Va. LEXIS 29 (1883).
Heir at law under laws of foreign state not a “person interested.” —
If decedent died domiciled in Virginia, his wife would inherit the entire personal estate if he died intestate, and his sole heir at law under the laws of New York was not a “person interested” under this section. Guilfoil v. Hayes, 169 Va. 548 , 194 S.E. 804 , 1938 Va. LEXIS 232 (1938).
Parties to probate proceedings cannot subsequently contest will. —
In general, persons who were parties to the original probate proceedings cannot subsequently file a bill to contest the will. Ford v. Gardner, 11 Va. (1 Hen. & M.) 72, 1806 Va. LEXIS 53 (1806); Dillard v. Dillard, 78 Va. 208 , 1883 Va. LEXIS 29 (1883).
Except on ground of fraud. —
A person, even though he had appeared and contested the probate, may file a bill to contest the will on the ground of a fraud, to the existence of which he was a stranger at the time of the probate. Ford v. Gardner, 11 Va. (1 Hen. & M.) 72, 1806 Va. LEXIS 53 (1806).
Or where they withdrew from proceedings. —
Persons who enter themselves as contestants in the probate proceedings, but presently withdraw, are not estopped from contesting the will under this section, providing for contests by persons not parties to the probate proceedings. Dillard v. Dillard, 78 Va. 208 , 1883 Va. LEXIS 29 (1883).
IV.Trial of Issue Devisavit Vel Non.
Section confers jurisdiction to try issue of devisavit vel non. —
The language of this section shows a clear intendment to confer jurisdiction upon the court in which, or in the clerk’s office of which, the will is probated to try an issue devisavit vel non. Cowper v. Sargeant, 160 Va. 562 , 169 S.E. 920 , 1933 Va. LEXIS 236 (1933).
Nature of suit devisavit vel non. —
A suit devisavit vel non, though commenced by the filing of a bill in equity, is essentially a probate proceeding, governed by statute and having only one purpose: to determine whether purported wills should be admitted to probate. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
Determination of issue is mandatory. —
Upon a bill in equity being filed, determination of the issue of devisavit vel non by a jury is by this section made mandatory unless actually waived by all interested parties. Tate v. Chumbley, 190 Va. 480 , 57 S.E.2d 151, 1950 Va. LEXIS 146 (1950).
Parties may waive jury. —
This section requiring that a “trial by jury shall be ordered” in proceedings to contest a will only means a jury trial, accompanied by all of the incidents and modes of procedure attendant upon such a proceeding. The parties have a right to waive a jury as in a common-law action, or to demur to the evidence, and a judgment of the court without a jury in such cases is not an invasion of the right of the trial by jury. Culpeper Nat'l Bank v. Morris, 168 Va. 379 , 191 S.E. 764 , 1937 Va. LEXIS 235 (1937) (see also Ford v. Gardner, 11 Va. (1 Hen. & M.) 72 (1806); Penn v. Ingles, 82 Va. 65 (1886); Hartman v. Strickler, 82 Va. 225 (1886); Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 (1909)).
Jurisdiction is limited to trial of single issue. —
When a bill to impeach a will is filed under this section the jurisdiction of the court is limited to try the single issue, devisavit vel non, and when that issue has been duly determined, the jurisdiction of the court in such suit is ended. Potts v. Flippen, 171 Va. 52 , 197 S.E. 422 , 1938 Va. LEXIS 255 (1938), cert. denied, 305 U.S. 662, 59 S. Ct. 364, 83 L. Ed. 429, 1939 U.S. LEXIS 908 (1939).
But this section does not set exact terms thereof. —
This section was not intended to make hard and fast the exact terms in which an issue devisavit vel non should be framed. Where a will is assaulted and defended as a whole, and there is no suggestion from any source that the will may be void in part and valid as to other parts, in framing an issue under this section it is sufficient to direct the jury to ascertain whether a given paper, purporting to be the last will and testament of the testator, is the true last will and testament of the testator. It is not necessary to go further and enquire whether any part of the paper is his will. Rowland v. Rowland, 104 Va. 673 , 52 S.E. 366 , 1905 Va. LEXIS 149 (1905).
Procedure is substantially the same as in common-law actions. —
Upon the trial of an issue devisavit vel non, under this section, the mode of proceeding is substantially the same as upon the trial of common-law actions, and a demurrer to the evidence in such case is not an invasion of the jury in the trial of such issues. The jury are not the judges of the law in such cases, and the language of the section, “a trial by a jury shall be ordered,” only means a jury trial accompanied by all the incidents and mode of procedure attendant upon such a proceeding. The word “shall” in the sentence quoted does not prevent a waiver of trial by a jury, but is to be construed in the sense of “may.” Meade v. Meade, 111 Va. 451 , 69 S.E. 330 , 1910 Va. LEXIS 68 (1910) (see Queensbury v. Vial, 123 Va. 219 , 96 S.E. 173 (1918)).
Jury may pass on all testamentary papers of testator. —
The obvious purpose of the legislature was to permit the jury, under either this section or § 64.1-83, to pass upon all testamentary papers of the testator, whether admitted to probate or not. In re Will of Bentley, 175 Va. 456 , 9 S.E.2d 308, 1940 Va. LEXIS 191 (1940).
Burden on propounder. —
The onus is upon the propounder to establish the fact that the paper propounded is what it purports to be. Brown v. Hall, 85 Va. 146 , 7 S.E. 182 , 1888 Va. LEXIS 21 (1888).
When a will is admitted to probate under § 64.1-77 or § 64.1-85 and a person interested, who was not a party to the proceedings, files a bill in equity under the provisions of this section to impeach the will on an issue devisavit vel non, the burden is on the propounder, on the trial of such issue, to prove the due execution of the will and the competency of the testator as if there had been no probate thereof. Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 , 1933 Va. LEXIS 199 (1933).
Jury has no greater powers than under § 64.1-83. —
There is no reason why a jury trying the issue under this section should be invested with other or greater powers than a jury trying the issue provided by § 64.1-83. Meade v. Meade, 111 Va. 451 , 69 S.E. 330 , 1910 Va. LEXIS 68 (1910).
Verdict is generally binding on court. —
In ordering an issue devisavit vel non, the chancellor does not exercise any of the ordinary powers of a chancery court, but acts in obedience to the express mandate of this section; the object of the issue being to ascertain, by means of a jury trial, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. When that question is decided the function of the suit is exhausted, and the verdict is binding upon the court, unless for good cause shown it is set aside, either at the trial or afterwards, on a bill of review. Hartman v. Strickler, 82 Va. 225 , 1886 Va. LEXIS 25 (1886) (see Kirby v. Kirby, 84 Va. 627 , 5 S.E. 539 (1888)).
But legislature did not intend to confer probate jurisdiction on jury. —
Other provisions of this chapter, when read in connection with this section, show that the legislature did not intend to confer probate jurisdiction upon a jury and not upon the judge who presides at the trial of the issue. Meade v. Meade, 111 Va. 451 , 69 S.E. 330 , 1910 Va. LEXIS 68 (1910).
And verdict is not probate or rejection on will. —
The verdict of a jury on the issue devisavit vel non, although the finding is for the validity of the writing produced for the will, is not a probate of the will, nor is the verdict finding against the validity of the writing a final determination of its rejection for probate. The return of a verdict by a jury and the verdict itself are incidents in the progress of the trial to test the validity of the will. The finality of the validity or invalidity of the writing is the judgment of the trial court accepting or rejecting the verdict. Culpeper Nat'l Bank v. Morris, 168 Va. 379 , 191 S.E. 764 , 1937 Va. LEXIS 235 (1937).
Proceeding not collateral attack on order of probate. —
An administrator d.b.n., c.t.a., instituted suit against defendants who had received the proceeds of an estate as distributees of an intestate, and the bill of complaint was founded solely on the validity of an after-discovered will probated by order under § 64.1-77. A demurrer denied its validity, and the case was heard upon that issue. This proceeding, treated by the parties as a proceeding to try an issue devisavit vel non, was substantially in compliance with this section and was not a collateral attack on the order of probate. Hall v. Brigstocke, 190 Va. 459 , 58 S.E.2d 529, 1950 Va. LEXIS 144 (1950).
Court should not have approved a compromise agreement or directed that the decedent’s estate be distributed in accordance with the agreement so approved. Such approval and direction were beyond the scope of a suit devisavit vel non. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).
V.Effect of Order for Probate.
Section does not provide sole means of propounding later will. —
There is nothing in the language of this section which suggests that the proponent of a subsequent will must offer it for probate only in an equity suit brought to contest the will theretofore probated. In re Will of Bentley, 175 Va. 456 , 9 S.E.2d 308, 1940 Va. LEXIS 191 (1940).
The conclusiveness of the probate of an earlier will does not preclude the probate of a later will, since the probate of the later will is not an attack on the judgment of probate of the earlier will. Eyber v. Dominion Nat'l Bank, 249 F. Supp. 531, 1966 U.S. Dist. LEXIS 6483 (W.D. Va. 1966).
CIRCUIT COURT OPINIONS
Editor’s note. —
The cases below were decided under former Title 64.1 and prior law.
Notice. —
Although a party moved to set aside the appointment of the administrator of the estate of the decedent, because the pleadings did not establish actual notice of an attempt to probate the decedent’s purported will, and actual notice would not have equated to an appearance in any event, the administrator of the estate of the decedent could proceed in the administrator’s attempt to impeach the will. Pouncy v. Melvin, 105 Va. Cir. 477, 2020 Va. Cir. LEXIS 126 (Chesapeake Aug. 12, 2020).
When party is precluded from impeaching earlier will. —
Where a life tenant went to the clerk’s office with an executrix to offer a decedent’s earlier will for probate, and wrote a check to pay the clerk’s fees, he was a party to the probate proceedings and was thus precluded from attacking or impeaching that earlier will by claiming that the decedent had executed a later will. Adair v. Kuhn, 64 Va. Cir. 364, 2004 Va. Cir. LEXIS 62 (Spotsylvania County Apr. 12, 2004).
Jurisdiction is limited to trial of single issue. —
Although the daughter was correct in arguing that a trial on the issue of devisavit vel non had to conform to the provisions of § 64.1-88 and, in such a proceeding, the validity of a will was the only issue that could be tried, the children still could plead in their amended complaint that probate proceeding and their claim that the wife breached a contract to make a will for their benefit. Pleading both claims was permissible because they arose out of the same transaction or occurrence, and the children met the requirement of putting those individual causes of action in separate counts. Page v. Baker, 74 Va. Cir. 66, 2007 Va. Cir. LEXIS 291 (Roanoke County May 14, 2007).
Time limitation. —
Wife’s motion for reconsideration to challenge the residuary clause of the late husband’s will was time barred because it was not filed within one year of the will being admitted to probate, but in any event, the husband was allowed to do what he did regarding the residuary clause. Thadani v. Malkani, 73 Va. Cir. 255, 2007 Va. Cir. LEXIS 75 (Fairfax County Apr. 9, 2007).
§ 64.2-449. Procedure in probate proceedings.
- In every probate proceeding, the court or clerk may require all testamentary papers of the testator be produced and may compel the production of the will of a testator that is in the custody of any person.
- A summons may be served by an order of publication on any person interested in the probate of the will in accordance with § 8.01-316 .
- The court may appoint a guardian ad litem for any person interested in the probate of the will in accordance with § 8.01-9 .
- The record of the testimony given by witnesses in court on the motion to admit a will to probate and any out of court depositions of witnesses who cannot be produced at a jury trial may be admitted as evidence and given such weight as the jury deems proper.
History. Code 1950, §§ 64-77, 64-82, 64-87; 1968, c. 656, §§ 64.1-81, 64.1-86, 64.1-91; 2012, c. 614; 2015, c. 631.
Cross references.
As to appointment of guardians ad litem generally, see § 8.01-9 .
For general statutes on orders of publication, see §§ 8.01-316 through 8.01-319 .
The 2015 amendments.
The 2015 amendment by c. 631 inserted “or clerk” following “court” in subsection A.
Research References.
Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 4 Process. § 4.03 Methods of Serving Process. Friend.
Virginia Forms (Matthew Bender). No. 6-1001 Complaint to Impeach a Will, et seq.; No. 15-401 Checklist for Probate and Administration.
CASE NOTES
Editor’s note.
The cases annotated below were decided under prior law.
This section applies only to the record of what has been proved or deposed “in court.” It does not apply to what has been proved or deposed before a clerk. The record of what is proved or deposed means the record of what the witnesses said, not the conclusion of the clerk as to the effect of what they said. Grady v. Fauls, 189 Va. 565 , 53 S.E.2d 830, 1949 Va. LEXIS 200 (1949).
And to jury cases. —
This section applies only to cases tried by a jury. Grady v. Fauls, 189 Va. 565 , 53 S.E.2d 830, 1949 Va. LEXIS 200 (1949).
Section admits only evidence given at first probate. —
This section was intended to admit as evidence on the trial of an issue devisavit vel non “the record” of the testimony of only those witnesses who gave evidence in court at the time of the first probate, and the depositions of only those witnesses lawfully taken out of court at the first probate, who on account of death or other good cause cannot be produced at the trial of said issue. Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 , 1933 Va. LEXIS 199 (1933).
Ex parte order of probate does not shift burden of proof. —
Even when the ex parte order of probate can be considered admissible as evidence under this section, the order does not shift the burden of proof, and it is still incumbent upon the propounder to introduce evidence sufficient to prove the due execution and validity of the will in dispute. Dickens v. Bonnewell, 160 Va. 194 , 168 S.E. 610 , 1933 Va. LEXIS 199 (1933) (see Brown v. Hall, 85 Va. 146 , 7 S.E. 182 (1888)).
This section does not seem to have been intended as an original and independent remedy, but merely to afford an ancillary means of facilitating the probate of wills, and it furnishes no authority to a court to require a legatee under a will, which no one is seeking to have probated, to transfer the possession thereof to its clerk merely for safekeeping. This construction of this section is manifest when read in connection with the other sections of the Code by which it is surrounded. In re Nichols, 116 Va. 949 , 83 S.E. 368 , 1914 Va. LEXIS 108 (1914).
CIRCUIT COURT OPINIONS
Notice. —
Although a party moved to set aside the appointment of the administrator of the estate of the decedent, because the pleadings did not establish actual notice of an attempt to probate the decedent’s purported will, and actual notice would not have equated to an appearance in any event, the administrator of the estate of the decedent could proceed in the administrator’s attempt to impeach the will. Pouncy v. Melvin, 105 Va. Cir. 477, 2020 Va. Cir. LEXIS 126 (Chesapeake Aug. 12, 2020).
§ 64.2-450. Probate of copy of will proved outside the Commonwealth; authenticated copy.
When a will relative to an estate within the Commonwealth has been proved in another jurisdiction, an authenticated copy of the will and the certificate of probate of the will may be offered for probate in the Commonwealth, and there shall be a rebuttable presumption that the will was duly executed and admitted to probate as a will of personal estate in the jurisdiction of the testator’s domicile and the circuit