Wills and trusts: Stepmother defeats stepson’s claim to real property

Although a man argued that two parcels of real property belonged to a trust created by his parents, the circuit court did not err when it held the property belonged to the plaintiff’s stepmother.

Background

This case involves the disputed ownership of two parcels of real property in Craig County, Virginia. James “Jim” L. Rogers and his first wife Pamela Rogers created a trust during their marriage in which they placed their property. Jim remarried after Pamela died, and he used money from the trust to purchase the properties at issue, with him and his second wife Janet L. Dudding, both receiving title with the right of survivorship.

When Jim died, William E. Rogers—Jim’s son with Pamela—became the trustee and filed this suit to determine ownership of the properties. After a commissioner in chancery determined that the properties belonged to Janet, the circuit court adopted the commissioner’s report and entered judgment in Janet’s favor.

Writing requirement

William contends that the trust agreement “evince[d] an intent” by Jim and Pamela “to preserve property, if possible, for their descendants” and that, to that end, the trust agreement limited Jim’s authority to withdraw principal from the trust by requiring any such transaction to be “preserved in writing.”

But there is no evidence in the record that William ever argued, either to the commissioner or the circuit court, that Jim had no authority to purchase the property because he did not first request in writing that the trustee (himself) disburse the purchase money from the trust principal. William does not invoke any of the exceptions to Rule 5A:18, and this court does not raise them on its own.

Premarital agreement

Turning to William’s arguments based on the premarital agreement, in William’s telling, to the extent Jim’s withdrawal of the trust principal was lawful, those funds then became his separate property. Jim’s use of that money to purchase real property in Virginia and title that property in his and Janet’s names operated as either an attempted transmutation of separate property into community property or a conveyance of Jim’s separate property to Janet.

Relying on section five of the premarital agreement, which provided that any lifetime transfer or conveyance from one spouse to the other would be void unless the transferring instrument contained specific language referring to section five, William argues that Jim’s attempted transfers to Janet were void and that the affected property remained Jim’s separate property under the premarital agreement, which should revert to the trust under the terms of Jim’s will.

There are two flaws in William’s argument. First, the properties at issue constitute “real and/or personal property acquired during the marriage that is titled in the names of both [Jim] and Janet” under section 2.04(b). Section 2.04(b) does not require that section five formalities be met for the property to be treated as community property.

And section 2.04(b) does not limit its application to property acquired with community property. As long as the property is acquired during the marriage and titled in both spouse’s names, it is community property under section 2.04(b), and the source of funding is irrelevant.

Second, even if section five did apply to the transactions, Jim’s undisputed donative intent waived strict compliance with the writing requirement. Under the premarital agreement, Jim or Janet’s failure “to insist on the strict performance of any of the provisions of th[e] Agreement shall not be construed as a waiver of any subsequent default of same or similar nature.”

As the commissioner recognized, that provision implies that failure to insist on strict performance of a provision could waive that provision for past conduct. And William does not argue that anyone other than Jim or Janet could bring a claim for breach of the premarital agreement. Because Jim had the clear intent to grant Janet the right of survivorship, and Janet had the clear intent to accept that right, the parties waived application of section five to the transactions.

The commissioner found that Jim intended to create a right of survivorship. William has not challenged that finding on appeal. Regardless of whether Idaho or Virginia law applied, the right of survivorship means that the property passed to Janet upon Jim’s death.

Affirmed.

Rogers v. Dudding, Record No. 0704-24-3, June 24, 2025. CAV (Atlee Jr.). From the Circuit Court of Craig County (Branscom). John S. Koehler (James A. Steele III; Law Office of James Steele, PLLC, on brief), for appellants. Elaine D. McCaffety (Lenden A. Eakin; Woods Rogers Vandeventer Black PLC; Ferris & Eakin, P.C., on brief), for appellee. VLW 025-7-159. 10 pp.