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The Dead Man's Statute in Virginia

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James Irving
BKK Business Law Newsletter
March 2010

What sounds like the title of John Grisham’s next novel is actually an arcane and well-established rule of evidence.

At age ten, William Ray Phillips left his home and moved in with his aunt and uncle, Wayland and Margaret Council, on their Sussex County farm. The Councils had no children and Phillips was described by another relative as “the closest thing they had to a son.” After high school, Phillips attended college, graduating in 1970. He took a job in Petersburg where he worked until 1977, when his uncle Wayland invited him back to the farm for a talk.

According to Phillips, the only surviving witness to the discussion, he met with the Councils in their kitchen, where they made him an offer: if he would move back to the Council’s farm, they would sell him a parcel of land to build a house for himself, his wife and child. After Wayland retired in 1980, Phillips would rent the farm and take over the farming operation. In return, the Councils promised to leave to him all of their assets, whether real or personal when the last of them died. Phillips accepted the offer. This kitchen agreement was entirely oral and no memorandum of it ever existed.

Phillips sold his home, purchased land from the Councils and built a house, commuting to his job in Petersburg. In 1980, Wayland retired and thereafter Phillips operated the farm. In 1982, Wayland died. His will provided that upon his death, all his property was to go to Margaret, or to Phillips if Margaret predeceased him. According to Phillips, Margaret told him at that time that her will was “just like it.”

In the years that followed, Phillips continued to operate the farm. When the plant closed in Petersburg in 1987, Phillips turned down a transfer to Georgia and accepted a lower paying job in Hampton in order to fulfill his bargain. But then things began to change.

According to other witnesses, Margaret became eccentric, reclusive and angry after Wayland’s death. In 1996, she revoked a power of attorney that she’d given to Phillips and had her attorney notify Phillips that she’d “made some changes in her estate plan.” When Margaret died in 2005, her will directed that all of her property go to the Virginia Home for Boys and Girls. Phillips filed suit seeking enforcement of the 1977 oral kitchen agreement with the Councils. He faced two related hurdles - the statute of frauds and the dead man’s statute.

Under the statute of frauds, an alleged oral agreement like the Kitchen Agreement is presumptively unenforceable. However, an oral contract for the transfer of real property may escape the strictures of the statute of frauds if there is evidence of part performance. To prevail, the promisee must show that: 

  1. the parole agreement is certain and definite in its terms;
  2. the acts of part performance, performed in pursuance of the agreement, were proved; and 
  3. that the agreement has been so far executed that a refusal of full execution would operate as a fraud upon him.

In Virginia, the dead man’s statute provides that no judgment shall be entered against one incapable of testifying (such as by death) based upon the uncorroborated testimony of the adverse party.

At trial, Phillips successfully argued that his part performance of the agreement satisfied the requirements of the statute of frauds. Phillips also persuaded the trial court that even though he was the only surviving participant to the 1977 kitchen agreement, he had satisfied the requirements of the dead man’s statute because sufficient elements of the promise were corroborated by other evidence, including his move back to Sussex, his operation of the farm after Wayland’s retirement, and his decision to stay in Virginia and turn down a higher paying job in Georgia in order to fulfill the bargain.

The trial court agreed and ordered transfer to Phillips of Margaret’s net personal estate and real property. The Home appealed. The Supreme Court reversed and entered judgment for the Home.

The Supreme Court held that Phillips could not meet the first or second prongs of the statute of frauds test because there was no competent, independent evidence of the kitchen agreement. Similarly, he could not escape the dead man’s statute because there was no evidence corroborating his claims. While the threshold is low - the corroboration, said the court, “need not rise to the level of confirmation, but need only serve to strengthen the surviving witness’ account” - Phillips could produce no proof of the existence of the contract or its essential terms that was independent of his own evidence.

Application of these rules can sometimes lead to apparent injustice but, without them, there would be an increased opportunity for fraud based upon alleged promises that cannot be rebutted from beyond the grave. The lesson is simple - if it’s important enough, get it in writing. If the promise-maker is serious, this will not be an unreasonable request.