DONAL A. IRVING, IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF DECLAN PATRICK IRVING v. CAROL DIVITO, ET AL.
Record No. 170071
Supreme Court of Virginia
December 14, 2017
JUSTICE WILLIAM C. MIMS
PRESENT: All the Justices
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
I. Background and Procedural History
Declan Irving was married for four years. In the course of obtaining a divorce he executed a property settlement agreement, which states that “no children were born of the marriage” and “the infant child known as
After Declan‘s death, his brother, Donal Irving, found two notes Declan left in his hotel room.1 The notes were addressed to Donal and indicated that Declan‘s will was at a local law firm. Donal contacted the firm but was advised that it retained only an electronic copy of the will. Declan‘s hotel room also contained a key to a self-storage unit where a briefcase holding Declan‘s original will was located. Despite the terms of the property settlement agreement, Declan‘s will identified Patrick as “[m]y child born before the date of my [w]ill.” It also designated Donal as the executor of his estate and named Declan‘s parents and siblings as beneficiaries.
The storage unit also contained a binder filled with a variety of estate planning documents, including a copy of the will, a general durable power of attorney, a special power of attorney, an advanced medical directive, and a document entitled “Estate Planning Reminders,” which advised Declan not to make changes on the face of his will without contacting an attorney. Each set of documents was separated in the binder by tab-dividers. Written diagonally and in cursive across one of these dividers appeared the following writing, which Donal contends is a codicil:
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 above writing to the Circuit Court Clerk of the City of Chesapeake for probate. The Clerk admitted the will to probate but concluded that the writing was not a validly executed codicil. Donal, as the executor of the estate, appealed the Clerk‘s decision to the circuit court, arguing that the writing was a holographic codicil executed in compliance with the wills statute,
At trial, Donal presented the testimony of five witnesses, each of whom was familiar with Declan‘s handwriting and signature. The first four were Declan‘s former colleagues, who all testified that the writing was in Declan‘s hand, and the initials were a signature they had seen Declan use. The fifth witness, Declan‘s accountant, testified without “[a]ny doubt” that Declan wrote and signed the writing.
In its letter opinion, the circuit court explained that the issue in this case is whether the writing meets the requirements of law to be a codicil . . . and, if not executed in strict compliance with
The court found that the document was written and initialed by Declan. Nevertheless, it concluded that Declan used his full signature on “formal documents,” such as his will and property settlement agreement. The court also noted that the writing was located on a tab-divider immediately adjacent to the “Estate Planning Reminders” document, which advised Declan not to make changes to his will without contacting an attorney. Lastly, the court observed that both of Declan‘s notes directed Donal to the will, but neither mentioned the writing at issue.
Based on these circumstances, the court refused to probate the writing as a codicil, concluding
that [it] does not comply with the statutory requirements set forth in
Code § 64.2-403 , in that it is not manifest that the name on the document in question was intended as the decedent‘s signature. Further, the writing at issue establishes a thought or plan of the decedent to make a change to his will, and is precatory and tentative in nature. Thus, testamentary intent to createa codicil has not been established by clear and convincing evidence.
Donal appeals.
II. Analysis
A. Code § 64.2-403
On appeal, Donal primarily argues that the circuit court erred by ruling that the writing did not comply with the wills statute, which states, in pertinent part:
A. No will shall be valid unless it is in writing and signed by the testator, or by some other person in the testator‘s presence and by his direction, in such a manner as to make it manifest that the name is intended as a signature.
B. A will wholly in the testator‘s handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator‘s handwriting and signed by the testator is proved by at least two disinterested witnesses.
In Donal‘s view, the circuit court‘s analysis should have ended with its determination that the document was written and initialed by Declan, and the court erred by holding that a “formal” signature was necessary to comply with the wills statute. He correctly observes that Virginia law does not “define what shall constitute a ‘signature,‘” and that initials or even a mark can be sufficient. Pilcher v. Pilcher, 117 Va. 356, 365, 84 S.E. 667, 670 (1915); Clarke v. Dunnavant, 37 Va. (10 Leigh) 14, 24 (1839). But the circuit court did not rule that Declan‘s initials were insufficient as a matter of law or that a “formal” signature was necessary. Rather, it held that the writing did not comply with the requirement in
This “signature” requirement, which has remained unchanged since the General Assembly first enacted the statute in 1850, necessitates that “there must be a concurrence of the . . . intention to make a will and the intention to sign the instrument as and for a will.” Hamlet v. Hamlet, 183 Va. 453, 462, 32 S.E.2d 729, 732 (1945) (emphasis added). The testator must have “designed by the use of his signature to authenticate the instrument.” Dinning v. Dinning, 102 Va. 467, 469, 46 S.E. 473, 473 (1904). Whether a signature – be it a full signature, initials, or a mark – satisfies this requirement “must largely depend upon the circumstances of each particular case, though in all cases . . . intent is a vital factor.” Pilcher, 117 Va. at 365, 84 S.E. at 670. Importantly,
[i]t is not sufficient to raise a doubt as to whether [the] name is intended to authenticate the paper which is propounded as a will, for, to use the explicit language of the statute, it must be signed ‘in such a manner as to make it manifest that the name is intended as a signature,’ and unless so signed it is not valid.
Hamlet, 183 Va. at 462, 32 S.E.2d at 732 (emphases added) (quoting Meany v. Priddy, 127 Va. 84, 85, 102 S.E. 470, 470 (1920)).
As a threshold matter,
Declan‘s initials appear at the end of the writing, providing internal evidence that they were designed to authenticate the document as a codicil. Consequently, the circuit court appropriately considered extrinsic evidence to determine whether the initials constituted a signature for the purposes of
In the execution of his will and property settlement agreement, Declan demonstrated that he used his full signature to authenticate legal and testamentary documents. The use of only his initials on the writing at issue in this case therefore raises a doubt as to whether he signed the writing with the intent to authenticate it “as and for” a codicil. Hamlet, 183 Va. at 462, 463, 32 S.E.2d at 732, 733 (concluding that the testator‘s name appearing in the second paragraph of a proposed will was not intended as a signature to authenticate the will after considering that the testator “careful[ly]” placed his signature at the bottom of a previous holographic will); Payne, 210 Va. at 518, 171 S.E.2d at 829 (considering the testator‘s practice of signing “letters and cards at the bottom or end” to conclude that her name appearing at the top of a purported will was not manifestly intended as a signature). Our doubt is strengthened by the fact that Declan‘s notes directed Donal only to his will without mentioning the writing, which suggests that Declan did not consider his initials to have authenticated the writing as a testamentary document.
This doubt prevents the conclusion that it is manifest that the initials were intended as Declan‘s signature. Accordingly, we affirm the circuit court‘s judgment.
B. Code § 64.2-404
Donal next argues that even if the writing does not satisfy the requirements of
was not executed in compliance with
§ 64.2-403 . . . as if it had been . . . if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent‘s will . . . [or] (iii) an addition to or an alteration of the will . . . .
“Testamentary intent . . . means that the writing offered for probate must have been executed by the testator with the intent that such writing take effect as his last will.” Thompkins v. Randall, 153 Va. 530, 538-39, 150 S.E. 249, 251 (1929). Initially, “[t]estamentary intent is determined by looking at the document itself, not from extrinsic evidence.” Wolfe v. Wolfe, 248 Va. 359, 360, 448 S.E.2d 408, 409 (1994) (citing Mumaw v. Mumaw, 214 Va. 573, 577, 203 S.E.2d 136, 139 (1974)). “[W]hether the face of an instrument
However, after a court determines that “an instrument contains some evidence of testamentary intent, extrinsic evidence may be admitted to determine whether the instrument is testamentary in nature.” Bailey, 246 Va. at 164, 431 S.E.2d at 316 (citing Grimes v. Crouch, 175 Va. 126, 132-34, 7 S.E.2d 115, 117-18 (1940)).3 Appellees presented such evidence, and the circuit court agreed that Declan did not execute the proposed codicil with testamentary intent. While the question of whether an instrument has evidence of testamentary intent on its face is a question of law, Bailey, 246 Va. at 162, 431 S.E.2d at 315, we review a circuit court‘s conclusion, based on extrinsic evidence, that a document was not executed with testamentary intent to determine only whether it is plainly wrong or without evidentiary support.
Much of the evidence discussed above also supports the court‘s conclusion that Declan did not execute the writing with testamentary intent. If he intended and believed the writing to be an effective codicil, it is reasonable to conclude that he would have mentioned it in his notes to Donal. His failure to do so, along with his failure to sign the writing in the same manner as his will, suggests that he did not consider the writing to have binding testamentary effect.4
Thus, the record supports the circuit court‘s conclusion that Donal did not prove by clear and convincing evidence that the writing was intended as a codicil or executed with testamentary intent.
III. Conclusion
The record in this case supports the circuit court‘s rulings that the writing was neither signed in the manner required by
Affirmed.