Irving v. Divito
294 Va. 465
| Va. | 2017Background
- Decedent Declan Irving executed a will (and a prior property settlement agreement stating he had no children) naming Donal Irving executor and identifying Patrick as his child.
- After Declan’s death, Donal found the original will plus a handwritten binder tab bearing a short holographic notation: "11/17/03 I wish to remove Patrick named as my son entirely from this will – no benefits. [Declan’s initials]."
- Donal submitted the will and the handwritten notation for probate; the Clerk admitted the will but rejected the notation as a valid codicil. Donal appealed to the circuit court seeking probate under Va. Code § 64.2-403 (holographic will/codicil requirements) or alternatively under § 64.2-404 (dispensing statute).
- At trial five witnesses familiar with Declan’s handwriting testified the notation and initials were in Declan’s hand; the circuit court found the handwriting and initials genuine but concluded the initials were not manifestly intended as a signature and that the notation lacked testamentary intent.
- The circuit court relied on extrinsic evidence: Declan’s practice of using his full signature on formal testamentary/legal documents, the tab’s proximity to a document advising him not to alter his will without counsel, and the fact Declan’s notes to Donal pointed only to the will and not the notation.
- The Supreme Court of Virginia affirmed, holding the initials were not manifestly intended as a signature under § 64.2-403(A) and Donal failed to prove testamentary intent by clear and convincing evidence under § 64.2-404.
Issues
| Issue | Plaintiff's Argument (Donal) | Defendant's Argument (Opponents) | Held |
|---|---|---|---|
| Whether the holographic writing was a valid codicil under Va. Code § 64.2-403 (signature requirement) | The writing is in Declan’s handwriting and initialed by him, which suffices as a signature; the court should have admitted it once handwriting/authorship was proved. | The initials are not manifestly intended as a signature to authenticate a codicil given Declan’s practice of using his full signature on formal documents and contextual facts. | Affirmed: initials not manifestly intended as a signature; § 64.2-403(A) not satisfied. |
| Whether the writing should be probated under the dispensing statute, Va. Code § 64.2-404, by clear and convincing evidence of testamentary intent | Even if statutory formalities fail, extrinsic evidence (handwriting witnesses, location of documents, notes) shows Declan intended the notation as a codicil. | The face of the writing and extrinsic evidence show it expresses a wish or plan, not an operative testamentary act; Donal did not meet the clear-and-convincing standard. | Affirmed: proponent failed to establish testamentary intent by clear and convincing evidence under § 64.2-404. |
Key Cases Cited
- Pilcher v. Pilcher, 117 Va. 356, 84 S.E. 667 (1915) (initials or marks may suffice as a signature depending on circumstances)
- Hamlet v. Hamlet, 183 Va. 453, 32 S.E.2d 729 (1945) (signature must authenticate instrument as a will; concurrence of intent to make a will and to sign)
- Dinning v. Dinning, 102 Va. 467, 46 S.E. 473 (1904) (testator must design by signature to authenticate the instrument)
- Slate v. Titmus, 238 Va. 557, 385 S.E.2d 590 (1989) (signature must appear manifestly intended from the face of the document or equivalent internal evidence)
- Bailey v. Kerns, 246 Va. 158, 431 S.E.2d 312 (1993) (face of instrument controls initial inquiry into testamentary intent; extrinsic evidence considered only if instrument contains some testamentary indicia)