88 Va. Cir. 293
Henrico Cir. Ct.2014Background
- Decedent Nick Hlouverakis (b.1927) died November 30, 2012; two wills offered: a handwritten (holographic) will dated March 25, 2011 (photocopy) proffered by niece Maria Palesis, and a formally executed will dated September 9, 2012 proffered by widow Vera Hlouverakis.
- Nick lived in Henrico County; Maria had longmanaged his rental properties, was his attorney-in-fact, and had access to his bank account; Nick was frugal and kept detailed handwritten records.
- March 26, 2011: Nick showed family an entirely handwritten will (Plaintiff Ex. 1 photocopy); Manny typed a legible copy (Plaintiff Ex. 2) which several family members saw Nick sign; the original handwritten page was left on a kitchen table and later could not be located.
- September 9, 2012: Vera produced a signed, witnessed formal will prepared in Serbia (Defendant Ex. 6) with two attesting witnesses; a forensic examination of electronic files relating to the Serbian drafter indicated the document was created after Nick’s death.
- Trial findings: court found the 2012 will to be a fabrication (errors in names, account balances, inconsistency in testimony, forensic evidence); the 2011 holographic will photocopy was authenticated by three disinterested witnesses who identified Nick’s handwriting and signature.
- Plaintiff sought probate of the photocopied holographic will and the typed copy, an accounting of Vera’s expenditures after March 26, 2011, and attorney’s fees; court admitted the photocopy and the typed copy under Va. Code § 64.2-404, but denied accounting and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/probate of 2012 formally executed will | N/A (Vera proffered it as decedent's last will) | 2012 will is validly executed in Serbia with attesting witnesses | 2012 will rejected — court found it fabricated and not properly proven; proponent (Vera) failed to meet burden to prove execution under Va. Code § 64.2-403 |
| Probate of 2011 holographic will (photocopy of original missing) | Maria: photocopy is admissible; original presumed lost; witnesses identified handwriting and signature | Vera: photocopy is not the original; alleged revocation | Court admitted the photocopy to probate — presumption of loss applied; three disinterested witnesses authenticated handwriting/signature per Va. Code § 64.2-403(B) |
| Probate of typed copy (Plaintiff Ex. 2) under § 64.2-404 | Maria: typed copy should be probated as valid under statute because Nick signed and intended it as his will | Vera: lack of attesting witnesses undermines validity | Court admitted typed copy under § 64.2-404 — clear and convincing evidence of signature and intent (witnesses saw Nick sign the typed copy) |
| Accounting and attorney's fees | Maria sought accounting of Vera’s expenditures and attorneys’ fees as prevailing party | Vera argued no fiduciary duty/ statutory basis for fees; American Rule bars fees absent statute/contract | Accounting denied (no basis shown); attorney's fees denied under American Rule absent statutory/contractual authority |
Key Cases Cited
- Johnson v. Cauley, 262 Va. 40 (presumption of loss when original will missing)
- Harris v. Harris, 216 Va. 716 (applying presumption when original testamentary document is missing)
- Moyers v. Gregory, 175 Va. 230 (requirements for holographic will/probating handwriting)
- Davidson v. Watts & Flint, 111 Va. 394 (admissibility of felony conviction to challenge witness credibility)
- Lannon v. Lee Conner Realty Corp., 238 Va. 590 (American Rule on attorney’s fees)
- McClung v. Smith, 70 F. Supp. 1384 (distinguishable Eastern District of Virginia case on accounting of separate funds)