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Law School Case Brief

Keith v. Lulofs - 283 Va. 768, 724 S.E.2d 695 (2012)


When reciprocal testamentary provisions are made for the benefit of a third party, there is sufficient consideration for the contractual element of the will to entitle the beneficiary to enforce the agreement in equity, provided the contract itself is established. Proof of the contractual nature of this agreement between the testators must be "clear and satisfactory." Such proof may expressly appear in the language of the instrument, or it may be supplied by competent witnesses who testify to admissions of the testators, or it may result as an implication from the circumstances and relations of the parties and what they have actually provided for by the instrument.


At the time wife and husband were married in 1972, each had a child from a previous marriage. Fifteen years into the marriage, the married couple executed wills that were "mirror images" of each other, and each left the estate first to the surviving spouse and then to their children equally. When the husband died, his estate passed to the wife pursuant to husband's will. Subsequently, the widow executed a new will that left the entirety of her estate to her daughter, making no provision for the husband's son. The wife's daughter, who had been appointed executrix of the wife's estate, presented the widow's later will for probate, which the trial court accepted. The trial court concluded that the wills were "mutual and reciprocal," and the son's testimony that the wills were intended to be irrevocable was uncorroborated. The husband’s son sought appellate review. 


Does the language of the “mirror image” wills support its irrevocability?




The appellate court held that the language of the "mirror image" wills was insufficient alone to form a contract, such that they were not shown to have been irrevocable. Further, the son failed to present sufficient circumstantial evidence to show that the decedents intended for the wills to be contracts, as he did not corroborate his testimony as required by law.

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