## Facts

- Arvid L. Keith, Jr. (Arvid) and Lucy F. Keith (Lucy) married in 1972; each had one child from a prior marriage: Walter Steven Keith (Keith) and Venocia W. Lulofs (Lulofs).
- On December 9, 1987, Arvid and Lucy executed “mirror image” wills drafted to leave each estate to the surviving spouse, and then to Keith and Lulofs in equal shares after the survivor’s death.
- In 1994, Arvid and Lucy purchased a life insurance policy naming Keith and Lulofs as equal (50/50) primary beneficiaries.
- Arvid died on March 21, 1996, and his estate passed to Lucy under the 1987 will.
- On April 1, 1996, Lucy changed the insurance beneficiary percentages so that Keith would receive 22% and Lulofs 78%.
- On May 17, 1996, Lucy executed a new will leaving her entire estate to Lulofs and making no provision for Keith.
- On May 30, 1996, Lucy changed the insurance beneficiary designation again so that Lulofs would receive 100% of the proceeds.
- Lucy died in 2006. Lulofs, as executrix, sought to probate Lucy’s 1996 will, and Keith contested the probate.
- Keith claimed Arvid and Lucy had entered into an agreement that the 1987 reciprocal wills were a binding contract that became irrevocable after the first spouse’s death.
- At trial, Keith testified about statements by Arvid and Lucy indicating that their “reciprocal wills” would ensure an equal division between Keith and Lulofs.
- Lulofs testified that she remembered a discussion involving Arvid, Lucy, Keith, and herself about the life insurance policy but could not remember what was said.
- The attorney who drafted the 1987 wills could not recall the wills or the surrounding circumstances.
- The trial court rejected Keith’s contract theory and admitted Lucy’s 1996 will to probate; Keith appealed.

## Issues

1. Whether the trial court erred in finding that Keith failed to prove the 1987 mirror-image wills were irrevocable reciprocal wills because they were part of a contract not to revoke.
2. Whether Keith’s evidence—largely his testimony about statements by Arvid and Lucy—was sufficiently corroborated to satisfy Virginia’s Dead Man’s Statute and support the claimed contract.

## Decision

- The Supreme Court of Virginia affirmed the trial court’s judgment admitting Lucy’s 1996 will to probate.
- The Court held Keith did not prove, by the required level of proof, that Arvid and Lucy entered into a contract making the 1987 reciprocal wills irrevocable after Arvid’s death.
- The Court held Keith’s testimony about statements by the deceased spouses was not adequately corroborated as required by the Dead Man’s Statute, and the remaining circumstances (including the insurance policy) did not supply the missing proof.

## Legal Principles

- Mirror-image (reciprocal) wills, without more, do not establish a contract restricting a testator’s ability to revoke or change a will.
- A party asserting that mutual or reciprocal wills are enforceable as a contract not to revoke must prove the contract and the intent to be bound by clear and convincing evidence; the absence of express contractual language in the wills (or a separate written agreement) weighs against the claim.
- Under Virginia’s Dead Man’s Statute, an interested party’s testimony about communications with, or statements of, a deceased person must be corroborated; a witness’s nonspecific recollection and a drafting attorney’s lack of memory do not provide meaningful corroboration.
- Related estate-planning conduct—such as taking out a life insurance policy with equal beneficiaries—may show an intent at a point in time, but it does not by itself prove an enforceable agreement not to alter later beneficiary designations or testamentary documents, especially where later unilateral changes occurred.
- On appellate review, the Supreme Court does not reweigh credibility determinations made by the trial court when the record supports the trial court’s finding that the proponent failed to carry the burden of proof.

## Conclusion

Keith v. Lulofs holds that reciprocal, mirror-image wills are not automatically irrevocable, and a challenger must prove a separate contractual commitment not to revoke by clear and convincing evidence; because Keith’s key testimony about the deceased spouses’ alleged promises was not corroborated under the Dead Man’s Statute and other evidence did not establish a binding contract, Lucy’s later 1996 will was properly admitted to probate.


Keith v. Lulofs, 724 S.E.2d 695 (2012)