On July 1, 2018, a new section of the Virginia Code relating to reformation of a will or its codicils went into effect. This new section, Virginia Code § 64.2-404.1, contains remedies for wills and codicils similar to those which exist for trusts in the Uniform Trust Code as adopted in Virginia, particularly Virginia Code § 64.2-733.
Under the new Virginia Code § 64.2-404.1, a circuit court may reform the terms of a decedent's will or its codicils if it is proved by clear and convincing evidence that both the intent of the decedent and the terms of the will were affected by a mistake of fact or law. If these requirements are met, the circuit court may reform the will or its codicils even if they are unambiguous. The mistake of fact or law may have affected the expression of the terms of the will or codicil, or the inducement of the decedent to make the will or codicil, or both.
The new section also permits a circuit court to modify the terms of the decedent's will or its codicils to achieve the decedent's intended tax objectives. Again, clear and convincing evidence is required, and the terms must be modified in a manner that is not contrary to the decedent's probable intention.
The remedies available under this new section are available only if the proceedings are brought in a circuit court under the appropriate statutory provision, and filed within one year from the decedent's date of death. All interested persons must be made parties to the proceedings.
Virginia Code § 64.2-404.1 applies to all wills and codicils regardless of the date of their execution. It also applies to all judicial proceedings regardless of when commenced, except that it will not apply to any judicial proceeding commenced before July 1, 2018, if the circuit court finds that the application of the new statutory provision would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of the parties.
Virginia Code § 64.2-733 provides similar remedies with respect to trusts. Like the new Virginia Code § 64.2-404.1, clear and convincing evidence is required. Also, like the new Virginia Code § 64.2-404.1, a court may reform the terms of the instrument if both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether the mistake related to the expression of the terms of the trust or the inducement of the settlor to create the trust.
If you have any questions regarding this new statutory section or title issues in general, please contact Jim Windsor at (757) 873.6308 or jlwindsor@kaufcan.com. Happy Fourth of July!
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The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2026.
