Written by attorney Neil Kuchinsky

Contesting an Improperly Probated Virginia Will Which Disinherits a Child of the Testator

In my Virginia contested will practice, I have found that a particular set of circumstances regularly repeats itself; which relatively few attorneys know how to deal with. Here is the basic scenario:

An elderly parent of several children executes a will that leaves nothing to an estranged child. Several months or years later, the parent executes a new will that changes some of the distributions, but still cuts out the estranged child. Because he had trouble locating the first will, or wanted to keep the first will as an option, the parent does not destroy it. When the parent finally dies, the newest will cannot be found, either because it was lost, stolen, or intentionally destroyed by the parent. All that can be found is a photocopy of the newest will, which cannot be directly accepted for probate.

The children who have the original, older will, which names them as the recipients of the decedent's estate, run to court to probate it, usually representing that the deceased parent said he wanted the older will used, after all. The disinherited child goes to a lawyer, complaining that he has been dealt with unfairly. Can the older will be thrown out in court, or can we prevent the copy of the newer will from somehow being used against him?

The answer is YES under the following conditions:

1) Not more than 1 year has passed since the older will was probated (put to record at the court);

2) The copy of the newer will states (as nearly all attorney drafted wills do), that "all my prior wills are revoked", or words to that effect; and the lawyer who drafted the newer will can testify the copy is a true copy;

3) The original of the newer will can be traced into the last known possession or control of the deceased person, even though it cannot be found now, and even if other interested persons theoretically "could have" stolen it.; and

4) There is no proper writing by the deceased that says "I want the old will to go back into effect".

All these conditions are met with surprising frequency. Here is how the smart and experienced Virginia attorney should proceed (this procedure would not work in some other states because of an old legal doctrine known as "dependent relative revocation", which no longer applies in this state:

First, a petition is filed asking the court to "establish a lost, revoking will". This means that the petitioner (the disinherited child) is asking the court to find from the evidence that a newer will did at one time exist, and by its words, revoked all prior wills. (The "revocation" provision of the will is the only part that is effective immediately when the will is signed). The attorney must then put on evidence in court that the copy of the newer will is an accurate copy, and that it was last seen in the possession or control of the decedent (usually when handed to him at the lawyer's office), and that it has not been found. The judge will then have to consider the presumption in Virginia law that, when an original will is last traced into the possession of the decedent, and cannot be found, the decedent intentionally destroyed it.

The end result, when all the conditions are met, is this: The court determines that the newer will did at one time exist, and at the moment it was signed, it revoked all prior wills. Then, the deceased parent intentionally destroyed the new will, revoking it, too. That means there are no longer ANY wills, and the deceased parent died "intestate" (without a will), leaving, by operation of law, equal shares to his children.

Thus, the previously disinherited child now has what could be a very valuable share of the estate. One can only hope he actually deserve it.

Additional resources provided by the author

Michies' Jurisprudence for Virginia and West Virginia Harrison on Wills and Administration for Virginia and West Virginia

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