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“De Facto Wills”: Estate Planning’s Dirty Little Secret?

Click here for the full citation as it appears in the Virginia State Bar Trusts and Estates Section Newsletter last will and testmanet“De facto wills?” you say.  “Surely not in Virginia!  Did I miss a memo?  Is the General Assembly even in session?” Without so much as a tweet or a blog post, let alone fanfare or a spread on the front page of Lawyers Weekly, Virginia now recognizes “de facto wills.”  No one, it seems, has dared to so label them until now.  Nevertheless, like Christmas in Seuss’s Who-ville, de facto wills came just the same: “It came without ribbons!  It came without tags!  It came without packages, boxes or bags!”  Chapter Two of the Virginia Practice Probate Handbook (updated in 2015) warns practitioners to “BE CAREFUL” of this “MAJOR CHANGE IN THE LAW.”  So, how is it that such a development carried no newsflash at all? The 2007 adoption (yes, I said 2007!) of what is now section 64.2-404 opened wide the doors to proving and probating attempts to document and effect testamentary dispositions that would have failed before its enactment. An estates and trusts litigator’s dream, “404” blurred a long-accepted and easily-recognized “bright line” standard, replacing it instead with a fact-intensive, situation-specific approach.  This relatively recent statutory shift–still only minimally battle-tested here in the Commonwealth–has long-time practitioners and judges alike re-evaluating what it takes for a document to be accepted as a will when the requirements of section 64.2-403 have not been met. When is a will that is not a will capable of being deemed a will?  There are now defined circumstances in which an otherwise legally-deficient document intended as a testamentary disposition will be upheld as a valid will in Virginia.  Section 64.2-404, is Virginia’s enactment of section 2-503 of the Uniform Probate Code (UPC), the so-called “Harmless Error Rule.”  The rule states that certain defects may be forgiven if sufficient proof can be adduced that the testator intended the faulty document to be the testator’s will.  The proponent of the will must present clear and convincing evidence to establish that the testator intended the document (or alteration) to effect a final testamentary disposition.  If the evidence succeeds, the statute now affords recognition and legal acceptance of the testator’s insufficient effort.  The statute expressly permits admitting to probate writings “not executed in compliance with § 64.2-403” but otherwise supported in court by convincing evidence of intentionality and finality.  Specifically, section 62.4-404 provides as follows:

  1. Although a document, or a writing added upon a document, was not executed in compliance with § 64.2-403, the document or writing shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
  1. The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator’s signature, except in circumstances where two persons mistakenly sign each other’s will, or a person signs the self-proving certificate to a will instead of signing the will itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent’s date of death and in which all interested persons are made parties.

The purpose of the Harmless Error Rule is to allow a reviewing “court to excuse a harmless error in complying with the formal requirements for executing or revoking a will” in much the same manner as “has long been applied to defective compliance with the formal requirements for nonprobate transfers,” as with life insurance beneficiary designations, for example. Case studies and evidence considered by the Uniform Law Commission (ULC), i.e., the drafters of the UPC, suggested that the remedial impact of the new statute would primarily apply in two cases: (i) failure to obtain signatures from one or both attesting witnesses, so long as the will proponent could show that “the defective execution did not result from irresolution or from circumstances suggesting duress or trickery–in other words, that the defect was harmless to the purpose of the formality”; and (ii) situations involving “alterations to a previously executed will” such as when “the testator adds a clause” or “crosses out former text and inserts replacement terms.”  As noted by the ULC, “[l]ay persons do not always understand that the execution and revocation requirements of Section 2-502 call for fresh execution in order to modify a will; rather, lay persons often think that the original execution has continuing effect.” Click here to read the full article on page 12 of the Fall 2015 edition of the Virginia State Bar Trusts and Estates Section Newsletter

About Thomas W. Repczynski

Bankruptcy Attorney Thomas Repczynski Tom Repczynski is an estates and trusts litigator, real estate litigation lawyer, and principal with Offit Kurman’s Bankruptcy and Restructuring Practice Group. A creditor-side bankruptcy attorney, Tom focuses his practice in general commercial and civil litigation with an emphasis on fiduciary disputes, creditors’ rights enforcement, and real estate related matters of all types. Tom represents an array of lenders, businesses, and individual clients from across the country in federal, bankruptcy, and state court and administrative proceedings with a broad range of trust and estate (i.e. inheritance related) disputes and general business contract and tort issues.  Tom’s bankruptcy-related experience has most recently emphasized non-debtor spouse priority claim matters (advising and assisting divorce/family law counsel), commercial landlord and Chapter 7 panel trustee representation, and includes more than 16 years of preference claims defense, and other secured, unsecured, and priority creditor representation in Chapter 7, Chapter 11, and Chapter 13 bankruptcy proceedings with both local and national implications.