Thursday, November 3, 2011

Forget About That Old Will?: It May Still Be Around

Joe was newly married, and had a new job. Joe and his wife dutifully had wills drawn up by a local attorney. Since Joe and his wife didn't have kids, his will said that if his wife died before him, everything went to his niece, who Joe was very close with at the time. Fast forward 40 years. Things didn't work out with Joe and wife, and they divorced after 10 years of marriage. Joe never remarried and never had kids. As Joe grew older he became very close again with his siblings. But over the years, while Joe still talked to his niece occasionally, and got a birthday card from her, they were not that close anymore. She lives in California now and has a family and life of her own.

Joe understands that, under Virginia law, if he dies without a will, his siblings would inherit his estate, since they are his closest living relatives (his "heirs at law"). Joe passes away, and his brother qualifies as the administrator of Joe's estate. When the brother is going through Joe's house (where he lived alone for the last 20 years), he comes across some old letters, cards and bills in a long forgotten desk drawer in the spare bedroom. There, he also finds the original of the will Joe did back in the late 70's. It is a sealed envelope with the lawyer's logo on it.
Most likely, that is still a valid will, and unless Joe's brother commits a crime (by hiding or destroying another's will), he has a duty to notify the niece and turn it over to her. And ultimately, rather than the siblings getting Joe's estate, his long lost niece is entitled to the whole thing.
Under Virginia law, a will can only be properly revoked in one of several very specific ways. The most common way is to do another will which has a provision that says all prior wills are revoked. You can also "cut, tear, burn, obliterate, cancel or destroy a will or codicil," according to the Virginia statute, 64.1-58.1, regarding the revocation of wills. (Also by statute, when Joe divorced his wife, the provision in the will leaving everything to her was revoked - I may talk more about that in a later post). But, in most circumstances, if you don't revoke a will in one of the ways provided by the statute, well, you haven't revoked the will.
In my hypothetical, which is somewhat based on a case I was involved in, it is likely that Joe completely forgot about that old will, or thought (incorrectly) that it had been destroyed long ago. It is also likely he did not intend his niece to have his entire estate.
In Virginia (and in most states I suspect), the law imposes an affirmative duty on folks to not only properly make a will, but also to properly revoke a will in one of the certain ways set by statute.
So, make sure that if you have an outdated will, you properly revoke it. As noted, normally it is done when a new will is written that contains the proper language.
But not properly revoking a will, and forgetting about it, could lead to some serious unintended consequences.

Monday, January 17, 2011

Another Oral Contract to Make A Will - You Better Do Your Part

A recent Virginia Circuit Court case from Norfolk (Browder-Martin v. Meneses) highlights one of the main elements of an oral contract to make a will case - performance. In the case, the plaintiff agreed with the decedent to care for the decedent for life in exchange for getting the decedent's home. The decedent actually signed a will in accordance with the agreement. But, after caring for the decedent for several years, the plaintiff moved away and had her son and daughter-in-law care for the decedent - for which the they were paid by the decedent. Decedent ultimately signed a new will - leaving her home to her granddaughter instead of the plaintiff. So, decedent dies and plaintiff files suit alleging a breach of the contract to make a will.

The Court said nope. The plaintiff agreed to provide care but then handed it off to her son and daughter-in-law, who were paid by the decedent. Keeping it simple (and getting it right, in my opinion), the Court said that the plaintiff had not fulfilled her promise - caring for the decedent for the rest of her life.

In Virginia (and most states), personal services contracts are not assignable, meaning you can't contract to provide services (as opposed to goods or merchandise) to someone and then have someone else provide them (this is a gross oversimplification, but you get the idea).

The bottom line is: If you are going to prove an oral contract to make a will in Virginia based on a promise to provide care or services to someone, then you have to provide the services.