IRVING v. DIVITO: BEWARE OF HOMEMADE ESTATE PLANNING DOCUMENTS
On December 14, 2017, in Donal A. Irvin, in his capacity as Executor of the Estate of Declan Patrick Irving v. Carol DiVito, et al, the Virginia Supreme Court recently opined that a handwritten amendment to a Will, drafted wholly in the handwriting of the decedent and then initialed by him, was not a valid codicil. Although you will often hear attorneys advise against homemade estate plans or amendments, this case emphasizes the importance of professionally drafted documents, and even more so when there is a major life change.
After Declan Irving’s passing on March 30, 2014, his brother, Donal Irving, found two notes addressed to him which indicated that Declan’s Will was with a local law firm. Donal was unsuccessful in obtaining an original from the law firm, because they only had an electronic copy, and subsequently located the original Will in a briefcase within Declan’s self-storage unit.
The Will, despite language to the contrary contained in a property settlement agreement executed during a divorce, identified Patrick Irving as Declan’s son, but named Declan’s siblings and parents as beneficiaries of his estate, with Donal serving as Executor. Across a binder tab in Declan’s estate planning binder, Declan has written the following, in cursive, with his initials affixed thereto:
I wish to remove Patrick as my son entirely from this will – no benefits.
The binder tab was admitted to the Circuit Court for probate, but it was rejected as an invalid codicil to the Will. Donal appealed the decision, contending the writing was a holographic codicil as permitted by the code, or otherwise intended as a codicil. Despite the finding that the writing was in fact made by Declan, the court concluded that it was not clear that Declan intended to utilize initials as a signature, since he had signed his full name on other documents, and that the writing merely established a thought or plan to change a Will, and as a result, had no testamentary intent.
A holographic will is validly established when the will is wholly in the testator’s handwriting and signed by the testator as proved by at least two disinterested witnesses. While initials may serve as a signature, whether initials are intended to serve as a signature is dependent upon the facts of each case. The Virginia Supreme Court, in upholding the lower court’s opinion, found that Declan’s initials appeared at the end of the writing and thus provided authentication. However, in considering the case, the Virginia Supreme Court found that the lower court appropriately relied on extrinsic evidence, such as the use of a full signature on Declan’s property settlement agreement and Will, and a referred to his will without mentioning the writing.
In the event that a writing fails to comply with the requirements set forth above, the proponent can nonetheless establish the writing when clear and convincing evidence demonstrates that the will was intended by the decedent to serve as the decedent’s will or alteration thereof. When a court determines that there may be some testamentary intent, it should look to extrinsic evidence to determine the nature of the writing. The Virginia Supreme Court found that the failure to mention codicil in his note to Donal and the failure to sign the writing in the same manner as other legal documents demonstrated that Declan did not consider the writing to be a codicil to his Will. As a result, there was a finding that the burden of clear and convincing evidence of testamentary intent was not met.
While the lay person may disagree with the court’s determination, the case demonstrates the importance of professionally documented documents. And, while Hook Law Center, P.C. often educates our clients and prospective clients that estate plans are more than just documents, it is important to note that the construction is critical. As a result, when making important changes to your documents, you should consider seeking professional guidance.
Ask Kit Kat – Coyotes Near Us
Hook Law Center: Kit Kat, what can you tell us about coyotes in Hampton Roads (southeastern Virginia)?
Kit Kat: Well, once again, there is an interesting story to tell. Coyotes are not native to Virginia, but they now can be found in all parts of the state. Wildlife experts believe they first appeared in the western part of Virginia in the 1950s. They made their way here, according to Mike Fies, a biologist with the state game department, by either of two routes—one from Canada to the Northeast corridor; the other from the south and west where they probably crossed the Mississippi River in winter when it was frozen. In Hampton Roads, Mr. Fies estimates they number in the hundreds.
They like urban areas. They don’t have to contend with their #1 enemy—the wolf. They are mostly nocturnal, so people frequently confuse them with a German shepherd or some other dog. The coyotes found in Hampton Roads do have some small percentage dog (about 10 per cent) in their makeup due to inbreeding when their regular mates could not be found. Also, in urban areas, they are not hunted. It is illegal to do so. So here they thrive.
If you respect their space, you have nothing to fear. Usually, if they become aggressive, it’s because they may feel threatened, for example, if a dog gets too close. A dog is seen as a competitor. They are becoming emboldened, however, as to where they seek to live. They have been spotted at the traffic circle on Laskin Rd. near the oceanfront, Ft. Story, Regent University, a Yorktown oil refinery, and a backyard garage in Smithfield. According to Kevin Cornwell, the owner of a wildlife control business based in Carrollton, “When it comes to coyotes, every generation seems to be a littles less afraid of humans.” So don’t think your eyesight is playing tricks on you. If you see something which resembles a coyote, it probably is! (Joanne Kimberlin, “The Coyote Next Door,” The Virginian-Pilot, December 10, 2017, pg.1 and pg. 13)
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Shannon Laymon-Pecoraro is a Shareholder of Hook Law practicing in the areas of elder law, special needs planning, estate and trust administration, estate planning, asset protection planning, financial planning, guardianships, and conservatorships. Ms. Laymon-Pecoraro also works with plaintiffs who have been injured, and their trusted advisors, to advise on public benefits issues and developing trusts to protect settlements and verdicts. To date, she has completed over 250 personal-injury related trusts, specifically Settlement Protection Trusts and Special Needs Trusts, including those with Medicare Set-Asides.
Ms. Laymon-Pecoraro is certified as an Elder Law Attorney (CELA) by The National Elder Law Foundation (NELF). Approved by the American Bar Association and authorized by the Pennsylvania Supreme Court, the CELA certification is the legal industry’s “gold standard” for elder law and special needs practitioners. There are only about 500 CELA-certified attorneys nationwide.
Prior to joining the firm in 2012, Ms. Laymon-Pecoraro handled estate planning documents for members of the United States Department of the Army and has been involved in the legal representation of several large corporations.
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