FIDUCIARY FOCUS 2012: A CASE STUDY

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1 FIDUCIARY FOCUS 2012: A CASE STUDY Elizabeth Horsley Williams Mullen Center 200 South 10th Street - Suite 1600 Richmond, Virginia ehorsley@williamsmullen.com

2 FIDUCIARY FOCUS 2012: A CASE STUDY FACTS: At your client s death, you find in his possession a copy of a Last Will and Testament dated 20 years ago, together with an original Codicil dated 10 years ago. The original Codicil is signed by the testator and witnessed by a Notary; however, there are no witness signatures. The Codicil refers to specific sections of the Last Will and Testament, and revokes certain provisions. ISSUE: May the Will and Codicil be probated and, if so, how? 1. Appeal from Clerk s Probate Order The clerks of circuit courts are authorized to probate wills and appoint executors, as well as administrators upon death intestate. 1 Any person interested may, within six months after the clerk s order, appeal to the circuit court as a matter of right. 2 The court hears the appeal de novo. 3 An appeal may be taken from the action of the clerk in probating the will or qualifying the executor, or both. 4 A testator s nomination of an executor does not deprive the clerk (or the court) of discretion to refuse qualification. 5 Whether qualification may be refused for the nominee s conflict of interest is unsettled Suit to Establish Lost Will It is not uncommon that a testator executes a will in the lawyer s office, leaves with the original of the will (the lawyer keeping a photocopy), and after death the testator s original will cannot be located. In that setting, there is a rebuttable presumption that the testator destroyed the original will with intent to revoke. The proponents of a copy of the original will then bear the burden of rebutting the presumption with clear and convincing evidence of some other cause for disappearance of the original will. 7 More often than not, the proponents of the will rely on inferences drawn from circumstantial evidence, or even on speculation. 8 The model jury instruction regarding a will provides: 9 1 Va. Code Ann (repl. vol. 2007). 2 Va. Code Ann (repl. vol. 2007). 3 Id. 4 I T.W. Harrison on Wills at (4 th ed. 2007) Am. Jur. 2d, Executors and Administrators 200 at (2002); see I Harrison, supra, at [3] and Am. Jur. 2d, Executors and Administrators 212 at 175, 216 at 178; Annot., 11 A.L.R. 4 th 638 (1982). 7 E.g., Harris v. Harris, 216 Va. 716, 719, 222 S.E.2d 543, 545 (1976); Shacklett v. Roller. 97 Va. 639, 640, 34 S.E. 492, (1899). 8 See Harris at 720, 222 S.E.2d at 546 (competing inferences). 9 Virginia Model Jury Instructions Civil 2011 Replacement Edition, Vol. 2, Instruction No

3 A will is any writing that is legally executed in which a person states how his property is to be disposed of after he dies. 3

4 On the standard of clear and convincing a frequently given jury instruction provides: 10 When a party has the burden of proving an issue by clear and convincing evidence, he must produce evidence that creates in your minds a firm belief or conviction that he has proved the issue. The executed copy of the will establishes its existence in proper form and its contents. The proponent then must prove by clear and convincing evidence that the original will was not destroyed by the testator with intent to revoke. An illustrative inference against intentional destruction arises when the will pours over to a trust as an estate planning vehicle. In that setting, a revocation of the will, but not the trust, would skew the estate planning and possibly result in different beneficiaries. Attention should be given to the testator s mental capacity post-will. Destruction of the will by an incompetent testator is not a revocation. Judge Lamb observes that the suit invokes the plenary jurisdiction of the court of equity rather than a probate court. 11 Thus a final decree establishing the will states: This decree is certified to the probate court for formal probate In practice, however, the court in the suit in equity to establish the lost will proceed to admit it to probate Suit to Impeach/Establish Will After a decree or order by the court in an ex parte probate proceeding, or in a clerk s probate proceeding, a person interested who was not a party to the proceeding may sue to impeach or establish the will. 14 Though the statute says that a trial by jury shall be ordered, a jury may be waived by the parties. 15 The sole jurisdiction is to try an issue devisavit vel non is this the will? No other relief may be sought or awarded. 16 On issues and burden of proof, the Virginia Model Jury Instruction is as follows: Virginia Model Jury Instructions Civil 2011 Replacement Edition, Vol. 1, Instruction No B. Lamb, Virginia Probate Practice (1957). 12 Id. at Id. at Va. Code Ann (repl. vol. 2007). 15 Culpeper Nat l. Bank v. Morris, 168 Va S.E Harris v. Wyatt, 113 Va. 254, 74 S.E.199 (1912). 17 Virginia Model Jury Instructions Civil 2011 Replacement Edition, Vol. 2, Instruction No

5 Your verdict must be based on the facts as you find them and on the law contained in all of these instructions. The only question in this case is whether this writing is the last will of (name of decedent). In deciding this question, you will have to consider these issues: (1) Was the writing properly executed? (2) Did the decedent have testamentary intent when he signed it? (3) Did the decedent have testamentary capacity when he signed it? On these issue, the proponents of the will have the burden of proof by the greater weight of the evidence. (4) Was the writing ever revoked? On this issue, the contestants have the burden of proof by the greater weight of the evidence. (5) Did anyone exert undue influence on the decedent? (6) Did anyone fraudulently bring about the execution of a writing? On these issues, the contestants have the burden of proof by clear and convincing evidence. Grounds for impeachment exist if the statutory formalities for execution were not observed. 18 Though the testator must sign a witnessed will in the presence of two witnesses, all present at the same time, it sometimes happens that the testator signs while the witnesses were in a hall or an adjoining room. An appropriate jury instruction follows: The requirement that a testator sign the will in the presence of two witnesses who are present at the same time is satisfied if the two witnesses to the will were in the same room with the testator, the testator 18 Va. Code Ann (repl. vol. 2007). 5

6 was in their range of vision, and the witnesses were aware that the testator was signing the will. 19 Where the proper execution of a will is at issue, the Model Jury Instruction provides as follows: 20 No writing can be the last will of the decedent unless: (1) he signed it in such a way that it is clear that the writing was intended as his signature; and (2) he signed it in the presence of two witnesses who were both there at the time that he signed; and (3) the two witnesses signed the will in the decedent s presence. Section the Almost a Will Bill was enacted in 2007 to ameliorate the rigorous formalities exacted by Section Section is a safe harbor for certain defective wills, stating: Although a document, or a writing added upon a document, was not executed in compliance with the document or writing shall be treated as if it had been executed in compliance with 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. Importantly, the relief available under Section is limited to proceedings in a circuit court that are filed within one year from date of death and in which all interested persons are made parties Nock v. Nock s Ex ors, 51 Va. (10 Gratt.) 106, 119 (1853); Baldwin v. Baldwin s Ex or, 81 Va. (6 Hansbrough) 405 (1886); Parramore v. Taylor, 52 Va. (11 Gratt.) 220 (1854); Comment to VMJI No (2000 sup.). 20 Virginia Model Jury Instructions Civil 2011 Replacement Edition, Vol. 2, Instruction No Va. Code Ann (repl. vol. 2007). 6

7 The remedy in this section may not be used where the testator has not signed the will, except where two persons mistakenly sign each other s will, or a person signs the self-proving certificate to a will instead of the will. Where the testator dies with a copy of a will in his possession, but not the original, it is unclear whether the original will has been revoked. Two presumptions may arise when no original will is produced after the testator s death. First, if the will was in the custody of the decedent but cannot be found after his death, then a rebuttable presumption of revocation arises. The proponent of the will must prove by clear and convincing evidence that the decedent did not revoke the will. 22 In the alternative, there is a rebuttable presumption of loss where a will that was not in the possession of the decedent after its execution, and that could not be accessed by him, cannot be found. In that case, the contestant of the missing will bears the burden of proving that the will was revoked. 23 The Model Jury Instruction reads: 24 When it has been proved by the greater weight of the evidence that there was an executed will in the possession of the decedent and that it cannot be found after his death, then the law presumes that it was destroyed by the decedent with the intention of revoking it. To overcome this presumption the burden is on the proponent of the will to prove by clear and convincing evidence that the decedent did not revoke the will. And in conclusion, the finding instruction reads: 25 You shall find the writing to be the last will of the decedent if the proponent proved by a greater weight of the evidence that: (1) the writing was legally executed; and (2) the decedent intended it to be his will; and (3) the decedent was capable of making a will at the time he executed the writing. 22 Johnson v. Cauley, 262 Va. 40, 43, 546 S.E.2d 681, 683 (2001) 23 Id. 24 Virginia Model Jury Instructions Civil 2011 Replacement Edition, Vol. 2, Instruction No Id., Instruction No

8 You shall find the writing is not the last will of the decedent if the proponent failed to prove any one or more of the elements above, or if the contestant proved by clear and convincing evidence that the writing was revoked; or if the contestant proved by clear and convincing evidence that the writing was the result of undue influence or fraud. 8