‘Mirror-Image’ Will Not Binding Contract

A couple’s reciprocal wills providing each testator left the entire estate to the surviving spouse and each testator’s child from a previous marriage would get one-half the estate at the death of the surviving spouse, was not a binding contract and the widow was free to change her will and leave everything to her daughter, but nothing to her stepson, says the Supreme Court of Virginia.

Although the trial court concluded the 1987 wills were “mutual and reciprocal,” it found the evidence was insufficient to prove the wills reflected a contractual agreement to bind the survivor.

Wills, unlike contracts, generally are unilaterally revocable and modifiable. A will does not become irrevocable or unalterable simply because it is drafted to “mirror” another testator’s will.

In Black v. Edwards, 248 Va. 90 (1994), this court held mutual and reciprocal wills at issue were irrevocable contracts, based on the unimpeached testimony of the drafting attorney who testified the parties intended to draft reciprocal, irrevocable wills. There was no such testimony here.

The interpretation urged here by the appellant stepson would create the very real risk that any testator who executes language similar to that contained in the wills at issue would be unintentionally hamstrung by the death of the purportedly reciprocal testator. The testator would be unable to provide for any future spouse or any child born or adopted during a later marriage. Such an interpretation is unreasonable.

The language of these “mirror image” wills is insufficient alone to form a contract and therefore, appellant failed to meet his burden to show the wills were irrevocable. Nor did the trial court err in holding the stepson’s testimony was not corroborated. An insurance policy taken out seven years after the wills were executed, that split insurance proceeds 50-50 between the two offspring, cannot provide evidence as to the intent of the testators at the time the wills were drafted. Thus, no record evidence corroborates appellant’s testimony as required by the Dead Man’s Statute.

Judgment for executrix affirmed.

Keith v. Lulofs, Executrix (Powell) No. 110433, April 20, 2012; Newport News Cir.Ct. (Fisher) John Ward Bane for appellant; Michael W. Smith, Michael L. AtLee for appellee. VLW 012-6-068, 10 pp.