February 2016 Third Example Ten-point Answers to Virginia Essay Questions


      In 2001, Tom and Wanda, both residents of Virginia, married later in life. Tom had no children of his own. Wanda had an adult child named Sandra, who was born out of wedlock in a non-marital relationship between Wanda and another man that had ended in 1995. Tom never adopted Sandra nor did they ever live together in the same household. However, at social gatherings Tom repeatedly let it be known that he had feelings of affection for Sandra and that, "She is the daughter I never had."

      In 2005, Tom executed a valid will leaving "all my property to my wife, Wanda and, if she predeceases me, to her children." When Wanda died in 2010, Tom's health began to decline, and he had be hospitalized from time to time for treatment. On one such occasion a few months before Tom's death, during a bedside visit by Sandra, a nurse was adjusting Tom's intravenous medication. Tom introduced Sandra to the nurse, saying, "She's my deceased wife's daughter and the daughter I wished I had. But it's never too late. I've left her everything in my will. I was looking for it just before I had to be brought here, but I can't remember where I put the darned thing. It's somewhere in the file cabinet at home where I keep my important papers or maybe in my safe deposit box at the bank. Anyway, it's all Sandra's when I go."

      Tom died in 2015, survived by Sandra, his brother, Jack, and a niece, Melanie, who is the daughter of Tom's deceased sister. Although Sandra and Jack conducted a diligent search, no one has been able to find the original of the executed will since Tom's death. Sandra did, however, find a photocopy of the fully executed will in the file cabinet in Tom's house. The individuals who signed it as witnesses are dead.

      Sandra filed a petition in the appropriate Circuit Court seeking to establish the photocopy as the will of Tom and asserting her claim to the entire estate. Jack opposed the action and filed a cross-petition seeking a declaration that Tom died intestate.

      At the hearing, Sandra testified, relating the bedside remarks Tom had made in the presence of the nurse, and she called the nurse as a witness, who confirmed what Tom had said and that Tom appeared to be fully in command of his faculties. Sandra also called as witnesses two social acquaintances of Tom, who testified they often heard Tom express his feelings of affection for Sandra.

      Jack, on the other hand, testified that he had paid Tom a visit at the hospital just before the visit Sandra testified about. During that visit, Jack said, while he and Tom were alone together in the room, Tom told him that he had torn up his 2005 will intending to draft a new one leaving everything to Jack and Melanie but never got around to it.

      Sandra and Jack filed cross-motions to strike the other's evidence of the hospital conversations with Tom, each invoking the Virginia Dead Man's Statute.

  (a) How should the Court rule on the cross-motions to strike the evidence? Explain fully.
  (b) Is the evidence Sandra produced at the hearing sufficient to establish the photocopy as Tom's will, and, if she succeeds, can she inherit under the will? Explain fully.
  (c) If Sandra does not succeed, to whom and in what proportions should Tom's estate be distributed? Explain fully.

February 2016 - QUESTION 7 – EXAMPLE ANSWER #1

(a) The court should grant Sandra's motion to strike and deny Tom's motion to strike because only Sandra has brought forth evidence to corroborate her claim against Tom's estate.

At common law, a person could not testify as to statements made by a decedent in support of a claim that witness was bringing against a decedent's estate. The rationale is that the witness is inherently interested in the outcome of the litigation and therefore has motivation to lie. The decedent, meanwhile, is by definition unavailable, further compounding the risk that the testimony will be untruthful.

Virginia applies a modified version of the Dead Man's Statute. A witness who has an interest in the decedent's estate may offer testimony as to statements made by the decedent, but only if there is some other evidence to corroborate that statement.

Here, only Sandra has offered corroborating evidence of what Tom said. Sandra's testimony that Tom said he intended that Sandra would take his entire estate by will has been corroborated by the testimony of the nurse who heard Tom make similar statements while he was in the hospital. In addition, the testimony presented by two different social acquainances that they had often heard Tom talk about his love for Sandra corroborates her testimony that Tom had wanted her to inherit.

By contrast, Jack has offered no evidence to corroborate his testimony about Tom's statements. Jack testified that Tom said he had revoked the 2005 will, and that Tom intended to leave his entire estate to Jack and Melanie. According to Jack's testimony, however, he was alone with Tom when Tom made those statements. Therefore, nobody overheard and corroborate his account. Jack also has failed to call any other witnesses to whom Tom might have expressed a similar intent.

Therefore, the court should grant Sandra's motion to strike Jack's testimony that Tom had said he revoked his 2005 will by physical act (of tearing it up), and intended to leave his estate to Jack and Melanie. The court should deny Jack's motion to strike Sandra's testimony that Tom had stated he believe his 2005 will remained valid and in effect.

(b) The court should accept the photocopy of Tom's 2005 will as his valid last will and testament. Under that will, Sandra should receive Tom's entire estate.

Validity of Photographed Copy

In Virginia, if a decedent was known to have executed a will, and that will is not found in his possessions at his death, there is a presumption that the decedent destroyed the will. Physical destruction of the will, such as by burning or tearing the text of the document, operates as a revocation by physical destruction.

However, even if the will cannot be found, a copy of the will can be admitted for probate if there is sufficient evidence to establish that the copy does represent the testator's valid last will and testament, and that it was not revoked.

In this case, Sandra and Jack both searched through Tom's possessions following his death, and neither was able to find a copy of his will. The facts indicate that Tom had executed a will in 2005, and so when the will could not be found in 2015 after he died, there arose a presumption that he had revoked the instrument.

Nonetheless, Sandra has presented sufficient evidence that the copy of the will found in Tom's filing cabinet should be admitted to probate. First, it is important that the copy of the will was found in Tom's filing cabinet. This is the sort of place where a person generally keeps important documents. If Tom had destroyed the original will and intended to revoke, he likely would not have maintained a copy of the will among his files. Thus, the location in which the copy of the will was found lends to the inference that Tom did not revoke the instrument.

Additionally, and as discussed above, Sandra has offered credible evidence of statements Tom made. Sandra's evidence that in 2010, while in the hospital, Tom expressed his belief that his 2005 will was valid and in effect, and that Sandra would take his estate since Wanda had pssed away, supports the conclusion that Tom did not intend to revoke.

To be sure, 2010 was five years ago. Tom could have revoked his will in the interim. But on these facts, Sandra has offered enough evidence that the photocopy of Tom's will is valid and should be probated.

Sandra's Gift Under Will

Assuming the validity of the photocopy of the will, Sandra should take the entire estate.

A person validly executing a proper will may dispose of his property in any way that he sees fit. The law in Virginia will sometimes operate to effect changes -- such as in the case of a divorce following execution, a pretermitted child, or a lapsed gift. But the facts here would not support any changes to the gift Tom made.

Here, Tom's will states that his entire estate would pass to his wife, Wanda. However, in the event that Wanda died before Tom, the will states that "all my property ... to [Wanda's] children."

The facts do not indicate whether Wanda had any children other than Sandra. Assuming that Sandra is Wanda's only child, then she is the only member of the class of persons who is eligible to take. Therefore, Sandra takes Tom's entire estate.

(c) If Sandra does not succeed in establishing that the 2005 will should be probated, then Tom's estate should pass, via intestacy, in equal shares to Jack and Melanie.

If a decedent dies without leaving a valid will, or if the will does not provide for the disposition of the entire estate, then Virginia's intestacy laws apply to govern how the estate should be distributed.

Under the intestacy laws, if a decedent does not leave behind a surviving spouse, the estate passes to any descendants of the decedent, by representation. Only children who are natural children of the decedent, or who have been formally adopted, constitute "descendants" for intestacy purposes.

Here, although Sandra was Tom's step-child and he had great affection for her, the facts state that Tom never adopted her. Therefore, Sandra is not entitled to take under intestacy as a descendant of Tom.

If a decedent does not leave behind a surviving spouse or any descendants, then the estate passes to his parents. If his parents do not survive him, then the estate passes to his siblings, by representation.

Here, Tom was not survived by his parents, but he does have a living sibling - Jack. Because this is the first line at which Tom has a living heir, his estate should be distributed to his siblings, by representation. Because Tom's sister predeceased him but left behind a descendant, Melanie will take in the sister's place. Therefore, Tom's estate passes to Jack and Melanie, in equal shares.

February 2016 - QUESTION 7 – EXAMPLE ANSWER #2

Part A.

The Court should deny Jack's motion to strike the evidence and grant Sandra's motion to strike the evidence under the Virginia Dead Man's Statute. Under the Virginia Dead Man's statute, the Court will not allow a person to offer evidence of a conversation she had with the decedent if she is to benefit from the outcome of the alleged conversation unless the testimony is corroborated by a thirdparty.

Sandra testified regarding her bedside conversation with Tom and a nurse testified to properly corroborate such testimony. In the nurses presence, Tom stated that he left Sandra "everything" in his will, and that he was unable to find the will before he was taken to the nursing home. Furthermore, he stated that his will is likely in his filed cabinet, which is where the copy was found. Jack on the other hand testifies only to a private conversation that he allegedly had with Tom. Jack would greatly benefit from his claim as he would go from receiving nothing under the will to receiving half of the estate. Jack does not offer any additional evidence or witnesses to support his claim. Without any corroboration, Jack's testimony does not satisfy Virginia's Dead Man Statute.

Therefore, the court must strike Jack's evidence regarding his alleged bedside conversation with Tom and deny Jack's motion to strike Sandra's evidence.

Part B.

Sandra's evidence is sufficient to establish the photocopy as Tom's will, and she can inherit under the will. The proponent of the will has the burden of proving that the will should be admitted into probate. Generally, when a known last will is not found in the decedent's home or where one would typically store legal documents, it is presumed that the testator revoked his will. However, the Court will allow evidence to support a claim to the contrary.

Here Sandra bears the burden of proving that Tom did not revoke his will and that he merely was unable to locate the original. She has sufficient evidence to satisfy the burden. First, there is the conversation with nurse referencing the will and stating that Sandra was to receive everything. Additionally, the fact that a photocopy of the fully executed will was in a file cabinet in Tom's house is evidence that he did not revoke the will. It is generally discouraged to operate with copies of wills for this very reason. However, Tom stated that the file cabinet was where he keeps his important papers, and that the copy of the will was located therein is helpful to Sandra's claim. To revoke the will, Tom would have destroyed or revoked the copy too.

The Court is likely to find that the original will was misplaced and allow the copy of the will to govern.

Sandra will inherit under the will as she is the sole member of the class of Wanda's children. As Wanda predeceased Tom, she is unable to inherit. Even though Sandra was not specifically named, the class gift to Wanda's children is valid, and she will inherit by the will.

The Virginia Anti-lapse statute will not apply because Wanda was not a blood relative of the testator. The Virginia antilapse statute provides that if a person who was to receive a bequest by a will predeceases the testator, that bequest lapses unless the recipient was a blood relative of the testator and is survived by a descendant. The descendant will then take the bequest. If spouses are included as blood relatives under the antilapse statute, then Sandra has another reason to inherit under the will.

Part C.

If Sandra does not succeed, all of Tom's estate will pass through intestate succession. The property will be distributed per capita with representation. Tom did not leave any descendants. Although he often expressed his love for Sandra, she is not an adopted daughter nor is she a natural daughter. Therefore, she does not have an intestate inheritance rights. Furthermore, he did not hold her out to be his daughter. She referred to her as the daughter he never had, and in his will referred to her as Wanda's child.

Because Tom was not survived by any children, the Court will then look to see if Tom has any surviving parents or descendants of his parents. The next level of surving family is Tom's brother Jack. Therefore, the court will divide the assets among Jack and the descendants of those siblings who predeceased Tom. Therefore, Jack will receive one half of the estate and the niece Melanie will receive the other hald.