Opinion
CL07-65.
October 12, 2007.
Paul J. Feinman, Esq., John E. Falcone, Esq., Petty, Livingston, Dawson Richards, Lynchburg, Virginia.
Neal S. Johnson, esq., Lichtenstein, Fishwick Johnson, Roanoke, Virginia.
Edward A. Natt, Esq., Osterhoudt, Prillaman, Natt, Helscher, Yost, Maxwell Ferguson, P.C., Roanoke, Virginia.
Dear Counsel:
Plaintiffs allege that their deceased father and his now deceased Wife had irrevocable reciprocal wills requiring all of their assets to go first to each other, and then in equal shares to Husband's three children and Wife's one daughter. Husband died leaving his estate to Wife. Wife then moved from South Carolina to Virginia, changed her will so that her daughter became her sole beneficiary, and made inter vivos gifts to her daughter.
Plaintiffs have sued Wife's daughter individually and in her capacity as executrix of her mother's estate. They claim that Wife's will and the inter vivos gifts were the product of undue influence; that she lacked the capacity to make a will and inter vivos gifts; and that Wife breached the reciprocal will and estate plan agreement by naming her daughter as her sole beneficiary. They ask that the will be set aside and all of the estate assets and all of the inter vivos gifts be placed in a constructive trust for the benefit of Plaintiffs.
Defendant's demurrer contends that Plaintiffs have misjoined causes of action arising from different transactions and occurrences. They ask that this case be divided into at least three separate lawsuits, one of which being Plaintiffs' devisavit vel non challenge. Defendant also demurrers to the charges that decedent Wife breached a reciprocal will agreement. They argue that the amended complaint does not allege a valid contract under South Carolina's probate code, which they believe to be the substantive law to be applied to this case. They conclude that since no valid contract exists, Defendant cannot be held to have breached it.
Plaintiffs deny the misjoinder of causes of action. They argue that the portion of the South Carolina probate code cited by Defendant contains procedural and not substantive law. Plaintiffs believe that their allegation of the existence of a valid, irrevocable and reciprocal will contract is sufficient to overcome Defendant's demurrer.
MISJOINDER AND SEVERANCE
In an opinion letter dated May 14, 2007 dealing with earlier demurrers and motions attacking Plaintiffs' original pleading, the Court went into detail concerning the law regarding misjoinder, severance and the new Rule 3 of the Rules of the Supreme Court of Virginia. Applying the logic of that first opinion letter, the Court finds that Plaintiffs have written their amended complaint so that each count can stand alone as a separate cause of action, thereby avoiding the confusion that existed in their initial complaint. The Court also finds that the facts involving each count are so interrelated that substantial justice can be accomplished by combining the various claims without prejudice to Defendant. Accordingly, Defendant's demurrer dealing with misjoinder is denied.
Defendant correctly argues that a trial on the issue devisavit vel non must conform to the provisions of § 64.1-88, Code of Virginia (1950), as amended. In such a proceeding the only issues to be considered are whether or not the will offered for probate is the decedent's true will, whether the decedent was competent to make a will, whether the will was the product of coercion and undue influence, and whether it should be admitted to probate. For an excellent discussion of the controlling case law on these issues see Judge James F. Almand's opinion in Rudwick v. Lloyd, 69 Va. Cir. 139 (2005). The argument that testatrix had contracted away her right to make a new will constitutes a collateral attack on the probate proceeding. See In Re: Bentley's Will, 175 Va. 456 (1940). It is not be considered by the jury when they make their decision to establish or impeach the will.
UNIFORM PROBATE CODE
Both parties agree that the substantive law of South Carolina and the procedural law of Virginia will be applied during the trial of the contract portion of this case. The issue to be decided is whether § 62-2-701 of the South Carolina Code deals with the formation of a contract and is therefore substantive law, or whether it deals only with the proof of such a contract and is thus procedural. The code section in question, enacted in 1986 when South Carolina adopted the Uniform Probate Code, reads as follows:
A contract to make a will or devise, or to revoke a will or devise, or not to revoke a will or devise, or to the intestate, if executed after the effective date of this act, can be established only by (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract and extrinsic evidence proving the terms of the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. S.C. Code Ann. § 62-2-701 (2006)
The arguments of counsel indicate that the contract, if it exists, does not meet these requirements. Therefore, if the above code section is the substantive law of South Carolina, the contract could not be proven or enforced in either South Carolina or Virginia. If, on the other hand, the code section is procedural, the contract could not be proven nor enforced in South Carolina, but it would be enforceable if proven in Virginia.
The Court is of the opinion that South Carolina's § 62-2-701 speaks to the proof of a contract and not the formation of a contract. Had it been the intent of the legislature to change the elements needed to form a contract, they would have said just that. The Court's opinion is buttressed by the official reporter's comment that" . . . the only concern of § 62-2-701 is with the proof of contracts concerning succession. . . ." That comment goes on to say that" . . . the prior South Carolina law, concerning the formation of such contracts and the effects of such contracts' formation and the breach thereof, remains intact."
Further, because there is no South Carolina case directly on point, the Court looked for persuasive case authority from other states that had adopted the Uniform Probate Code. The state courts in Arizona, Colorado, New Mexico and Michigan have all determined that their statutes paralleling South Carolina's § 62-2-701, are analogous to a statute of frauds, and are procedural. See Moore v. Schwartz, 669 P.2d 609 (Ariz.Ct.App. 1983); Brody v. Bock, 897 P.2d 769 (Colo. 1995); In Re Estate of Vincioni, 102 N.M. 576 (1985); and In Re Estate of Fritz, 159 Mich. App. 69 (1987). Both Virginia and South Carolina have construed their own statutes of frauds as being procedural. See Drake v. Livesay, 231 Va. 117 (1986) and Cooper v. A.A.A. Highway Express, Inc., 206 S.C. 372 (1945).
Accordingly, South Carolina's code § 62-2-701 is not applicable in Virginia. The question at trial will be whether a contract exists and whether it can be proven using the Virginia rules of evidence and the Virginia statute of frauds. Defendant's demurrer on this point is denied.
Counsel for Plaintiffs should prepare an appropriate order, incorporating this letter opinion by reference, and present it for entry after first obtaining endorsement of counsel.