Irving v. Divito

PRESENT: All the Justices
DONAL A. IRVING, IN HIS CAPACITY
AS EXECUTOR OF THE ESTATE OF
DECLAN PATRICK IRVING
OPINION BY
v. Record No. 170071 	JUSTICE WILLIAM C. MIMS
December 14, 2017
CAROL DIVITO, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
In this appeal, we consider whether the circuit court erred by concluding that a
holographic writing did not comply with Code §§ 64.2-403 or -404.
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 Patrick D. Irving is not the child of [Declan].” In
2012, he was diagnosed with colon cancer. He died on March 30, 2014.
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.
1 Leading up to his death, Declan stayed in a hotel room close to the hospital where he
was receiving treatments.

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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, Code § 64.2-403. Alternatively, he argued that it should be
probated as a writing intended as a codicil under the dispensing statute, Code § 64.2-404.
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

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not executed in strict compliance with Code § 64.2-403, whether it
should, nevertheless, be found by clear and convincing evidence
that the decedent created the document with testamentary intent
pursuant to Code § 64.2-404.
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 create a 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

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in the testator’s handwriting and signed by the testator is
proved by at least two disinterested witnesses.
Code § 64.2-403(A)-(B). “[I]n a probate proceeding, the burden is on the proponents to show by
a preponderance of the evidence that the purported will is written and executed in the manner
prescribed by [Code § 64.2-403].” Grady v. Fauls, 189 Va. 565, 569, 53 S.E.2d 830, 832
(1949); see also Delly v. Seaboard Citizens Nat’l Bank, 202 Va. 764, 767, 120 S.E.2d 457, 459
(1961) (the requirements of Code § 64.2-403, “which apply to the probate of a will[,] extend
with like force and effect to the probate of a codicil”).
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 Code § 64.2-403(A) that a codicil be “signed by
the testator . . . in such a manner as to make it manifest that the name is intended as a
signature.”2
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.
2 The circuit court also did not require Donal to prove by clear and convincing evidence
that the document complied with the requirements set forth in Code § 64.2-403, as Donal
contends in his third assignment of error. The court applied this burden of proof to Donal’s
evidence only in its analysis under Code § 64.2-404, as is explicitly required by that statute.

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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, Code § 64.2-403(A) “recognizes no will as sufficiently signed
unless” the intention to authenticate the writing “appears affirmatively from the position of the
signature, as at the foot or end, or from some other internal evidence equally convincing.” Slate
v. Titmus, 238 Va. 557, 560, 385 S.E.2d 590, 591 (1989) (quoting Ramsey v. Ramsey, 54 Va. (13
Gratt.) 258, 664, 670 (1857)). If there is no “internal evidence . . . afforded by the face of [a]
paper” that a signature was given with such an intent, the signature requirement cannot be
satisfied, and “extrinsic evidence is not employed to affect either pro or con the question of
finality of intention.” Warwick v. Warwick, 86 Va. 596, 603, 10 S.E. 843, 845 (1890) (emphasis
in original). Yet, when the face of a document gives some evidence that the name appearing on
it was intended as a signature to authenticate the document as testamentary, this Court has
repeatedly evaluated extrinsic evidence to confirm or disprove that the testator designed by the
use of his name to authenticate the document at issue. See, e.g., Pilcher, 117 Va. at 367, 84 S.E.

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at 671 (considering extrinsic evidence to conclude that a testator’s initials at the bottom of a
short holographic will were given with the intent to authenticate the instrument as a will); Payne
v. Rice, 210 Va. 514, 518, 171 S.E.2d 826, 829 (1970).
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 Code § 64.2-403(A). After considering this evidence, the court
determined that they were not written in a manner to make manifest that they were intended as a
signature to authenticate the writing. This factual determination will not be disturbed on appeal
unless it is “plainly wrong or without evidence to support it.” Code § 8.01-680; Pilcher, 117 Va.
at 364-66, 84 S.E. at 670-71 (“[W]hat constitutes a signature must largely depend upon the
circumstances of each particular case.”).
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

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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 Code §
64.2-403, it nevertheless should have been probated under the dispensing statute, which allows a
court to treat a writing that
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 . . . .
Code § 64.2-404(A). Donal contends that the writing should have been probated under this
statute because Declan’s testamentary intent to create a codicil was established by clear and
convincing evidence.
“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 contains evidence of testamentary
intent is a matter of law to be decided by the trial court.” Bailey v. Kerns, 246 Va. 158, 162, 431
S.E.2d 312, 315 (1993). If a court determines there is no evidence of testamentary intent within
the four corners of the instrument, that instrument is not a valid will. Id. (citing Poindexter v.
Jones, 200 Va. 372, 376, 106 S.E.2d 144, 146 (1958)).

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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. Code § 8.01-
680.
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
3 In his fifth assignment of error, Donal argues that the circuit court erred “in holding that
decedent’s testamentary intent was not clear and manifest on the face of the holographic
writing.” This argument is premised on the incorrect assumption that a court is not permitted to
look at extrinsic evidence after determining that the face of a document has evidence of
testamentary intent. After a court makes such a determination, the opponents of a will or codicil
have a right to introduce evidence disproving testamentary intent. Bailey, 246 Va. at 164, 431
S.E.2d at 316.
4 Additionally, the circuit court’s conclusion that the writing itself does not actually effect
a change to Declan’s will, but establishes only a “thought or plan” to change his will that he
“wish[ed]” to implement at some point, is also supported by the evidence. The proposed codicil
specifically states, “I wish to remove Patrick named as my son from this will – no benefits.”
(emphasis added). In this sentence, the infinitive “to remove” is a noun operating as the object
of the verb “wish.” The Chicago Manual of Style § 5.107, at 260-61 (17th ed. 2017). As the

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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 Code § 64.2-403(A) nor intended to constitute a codicil.
Accordingly, we affirm.
Affirmed.
infinitive is operating as a noun, and not as a verb, Declan was not actually removing Patrick
from his will via this writing.