Opinion
Civil Docket No.: CL15-1568
08-11-2016
Re: Ishon, et al. v. Animal Aid Society, Inc., et al.
John T. Midgett, Esq. Sherri L. Nelson, Esq. Midgett Preti Alperin PC 2901 South Lynnhaven Road, Suite 120 Virginia Beach, Virginia 23452 Michael B. Ware, Esq. Adrienne M. Sakyi, Esq. Schempf & Ware, PLLC 4000 George Washington Memorial Highway Yorktown, Virginia 23692 Jason E. Messersmith, Esq. Patten, Wornom, Hatten, & Diamonstein, LC 12350 Jefferson Avenue Suite 300 Newport News, Virginia 23602 David K. Edmonson, Esq. Senex Law, PC Post Office Box 3472 Hampton, Virginia 23663 E. D. David, Esq. David, Kamp, & Frank, LLC 739 Thimble Shoals Boulevard, Suite 105 Newport News, Virginia 23606 William J. G. Barnes, Esq. Harman, Claytor, Corrigan, & Wellman Post Office Box 70280 Richmond, Virginia 23255 John F. Sawyer, Esq. Wolcott Rivers Gates Convergence Center V 200 Bendix Road, Suite 300 Virginia Beach, Virginia 23452 Philip G. Emerson - Registered Agent Jamestown Yorktown Foundation, Inc. Post Office Box 3605 Williamsburg, Virginia 23187 Brett Alexander Zwerdling, Esq. Zwerdling, Oppleman & Adams 5020 Monument Avenue Richmond, Virginia 23230 W. Benjamin Pace, Esq. Joseph E. Blackburn, III, Esq. Williams Mullen 200 South 10th Street Suite 1600 Post Office Box 1320 Richmond, Virginia 23218-1320 Gary Lee Carre 808 Tanglewood Drive Clinton, Mississippi 39056 Shirley Anita Fowler 5773 Nailor Road Vicksburg, Mississippi 39180 Ruth Shope 516 Willowbrook Greensboro, North Carolina 27403 Frank A. Edgar, Jr. Esq. Sarah M. Saville, Esq. Goldstein, Edgar, Reagan, Roberts & Saville 741 J. Clyde Morris Boulevard Newport News, Virginia 23601
John T. Midgett, Esq.
Sherri L. Nelson, Esq.
Midgett Preti Alperin PC
2901 South Lynnhaven Road, Suite 120
Virginia Beach, Virginia 23452 Michael B. Ware, Esq.
Adrienne M. Sakyi, Esq.
Schempf & Ware, PLLC
4000 George Washington Memorial Highway
Yorktown, Virginia 23692 Jason E. Messersmith, Esq.
Patten, Wornom, Hatten, & Diamonstein, LC
12350 Jefferson Avenue
Suite 300
Newport News, Virginia 23602 David K. Edmonson, Esq.
Senex Law, PC
Post Office Box 3472
Hampton, Virginia 23663 E. D. David, Esq.
David, Kamp, & Frank, LLC
739 Thimble Shoals Boulevard, Suite 105
Newport News, Virginia 23606 William J. G. Barnes, Esq.
Harman, Claytor, Corrigan, & Wellman
Post Office Box 70280
Richmond, Virginia 23255 John F. Sawyer, Esq.
Wolcott Rivers Gates
Convergence Center V
200 Bendix Road, Suite 300
Virginia Beach, Virginia 23452 Philip G. Emerson - Registered Agent
Jamestown Yorktown Foundation, Inc.
Post Office Box 3605
Williamsburg, Virginia 23187 Brett Alexander Zwerdling, Esq.
Zwerdling, Oppleman & Adams
5020 Monument Avenue
Richmond, Virginia 23230 W. Benjamin Pace, Esq.
Joseph E. Blackburn, III, Esq.
Williams Mullen
200 South 10th Street
Suite 1600
Post Office Box 1320
Richmond, Virginia 23218-1320 Gary Lee Carre
808 Tanglewood Drive
Clinton, Mississippi 39056 Shirley Anita Fowler
5773 Nailor Road
Vicksburg, Mississippi 39180 Ruth Shope
516 Willowbrook
Greensboro, North Carolina 27403 Frank A. Edgar, Jr. Esq.
Sarah M. Saville, Esq.
Goldstein, Edgar, Reagan, Roberts & Saville
741 J. Clyde Morris Boulevard
Newport News, Virginia 23601 Dear Counsel:
Today the Court rules on the Complaint for Aid and Direction (the "Complaint") filed by Plaintiffs Jane J. Ishon ("Ishon") and Eugene M. Jordan, II ("Jordan"), co-executors of the estate (the "Estate") of Decedent Mary Ann Ward ("Ward"), and the Motion to Set Up Holographic Will as Last Will and Testament of Mary Ann Ward (the "Motion") filed by Defendants Daniel Miles, III, Jason W. Miles, Winona Miles, and Daniel Miles, Jr. (the "Mileses"). The issues to be resolved by the Court are as follows: (1) whether Ward's handwritten documents—the "Notes to Sarah Messersmith" (the "Notes") dated January 16, 2014, and the "Last Will and Testament" (the "2014 Will") dated January 17, 2014—together or separately constitute a valid holographic will; (2) if one or both of the documents constitute a valid holographic will, whether they supersede or supplement the 1995 "Last Will and Testament of Mary Ann Ward" (the "1995 Will"); and (3) whether Ishon and Jordan should be awarded their costs and expenses of this proceeding, including attorney's fees, as administrative expenses against the Estate. The Court finds as follows: (1) the Notes do not affect the 1995 Will or the 2014 Will due to a lack of finality of testamentary intent; (2) the 2014 Will is a valid holographic will that is entitled to be admitted to probate along with the 1995 Will; (3) the 2014 Will supplements and partially revokes the 1995 Will such that the 2014 Will percentage bequests completely replace Article 4 of the 1995 Will, and the first paragraph of the 2014 Will supplements Article 2 of the 1995 Will; and (4) because prosecuting the Complaint—which requests resolution of a disputed testamentary instrument—is consistent with the duties of co-executors, Ishon's and Jordan's reasonable costs and expenses of this proceeding, including attorney's fees, qualify as legitimate administrative expenses against the Estate. All other sections of the 1995 Will—including the detailed personal property bequests—remain intact.
Although the Court ultimately finds that the 2014 handwritten "Last Will and Testament" is a codicil to the 1995 Will because there is not a complete revocation, as discussed infra, the Court nevertheless refers to this holographic instrument herein as the "2014 Will."
Background
Well prior to her death on November 5, 2014, Ward executed the typed 1995 Will, dated February 28, 1995. (Compl., Ex. B.) After Ward's death, the 1995 Will was found in her bedroom. The 1995 Will, which contains five articles, names Ishon as Ward's personal representative and Jordan as her alternate personal representative. (Id. Art. 1.) The 1995 Will directs that all of her "estate, inheritance, and other death taxes" and "all administration expenses" be paid out of the residuary of the Estate. (Id. Art. 2.) The 1995 Will also bequeaths "certain items of personal property which [Ward] own[s] at [her] death to those persons named in a memorandum which specifically refers to this Last Will and Testament." (Id. Art. 3.) A "revised" version of the list of personal property bequests, dated February 18, 2011, and titled "Memorandum to Last Will and Testament of Mary Ann Ward" (the "Memo"), was found with the 1995 Will. (Id. at 4-5.) The Memo is extremely detailed, bequeathing to eleven individuals items as specific as "yarn," "knitting needles," "square pottery plates," a "walrus picture," and "paper mache ladies heads (on bedroom wall)." (Id.) The 1995 Will further bequeaths the residuary of Ward's estate to the "Mary Ann Ward Living Trust" (the "Trust"). (Id. Art. 4 (referencing Compl., Ex. D).) Finally, the 1995 Will discusses certain administrative requirements of Ward's personal representative. (Id. Art. 5.)
There is no dispute that the 1995 Will is valid.
There is no dispute that the Memo is valid.
The Trust also is funded from assets independent of disposition of the Estate (see Compl. Ex. D), and there is no dispute regarding funds held by the Trust.
After Ward's death, a notebook (the "Notebook") containing four consecutively numbered pages, (see Compl., Ex. E.), was found in Ward's kitchen. Page one is titled "Notes to Sarah Messersmith" and is dated January 16, 2014. (Id. at 1.) The body of pages one and two reads, "If they agree I wish to name the following as executors of my estate - and - to have power of attorney & medical power of attorney & to serve in any other legal capacity on my behalf: Jane Jordan Ishon, John Cabot Ishon, Sidney Jordan, Gene M. Jordan II." (Id. at 1-2.) The names of the individuals are in the form of a list, and the last one—which forms the concluding language in the Notes—does not end with any punctuation mark, although Ward's signature appears after the text. (Id. at 2.) Pages three and four comprise the 2014 Will. Page three is titled "Last Will and Testament." (Id. at 3.) The document continues as follows: "After payment of all debts which include normal fees to my executors (& I insist that they be paid), I wish to leave the following bequests . . . :" (Id.) The 2014 Will then vertically lists bequests as percentages, but did not specify to which portion of her estate the percentages refer. (Id.) The listing of bequests continues onto page four, and the bequests total 100%. (Id. at 3-4.) The list does not end with a punctuation mark, but immediately below the last bequest is Ward's signature and the date of January 17, 2014. (Id. at 4.) There is no language in the 2014 Will revoking any prior will or codicil.
Notably, Ward previously had made several amendments to the Trust by herself (see Compl., Ex. D, at 9-13) and had supplemented her will at least once with a memorandum she drafted herself (see Compl., Ex. B, at 4-5). In fact, in one of her Trust amendments, Ward wrote, "I hate to tell you this ... but ... I'm sure you know I will probably be making changes on my death bed. Sorry about that!" (Compl., Ex. D, at 11.)
Ishon and Jordan, in their capacity as co-executors of the Estate, filed the Complaint on July 23, 2015. Pursuant to a May 6, 2016, Agreed Order, a hearing on the Complaint was set for June 29, 2016. The Mileses subsequently filed the Motion on or about June 10, 2016. The Court held a hearing on June 29, 2016, where it heard evidence and argument regarding whether the 2014 Will constitutes a valid holographic will and how, if at all, the documents in the Notebook affect distribution of the Estate.
All parties at the Hearing conceded that no further discovery was needed and that the Court therefore could resolve both the Complaint and the Motion.
At the hearing, Ms. Billie Paxton Einselen ("Einselen") and Ms. Susan Edmonson ("Edmonson"), two uninterested parties who do not stand to receive any portion of the Estate, verified that the four handwritten pages in the Notebook are in Ward's handwriting and that the signatures on pages two and four are Ward's. Letia Drewry ("Drewry"), to whom Ward bequeathed a Rolex watch in the 1995 Will, testified that she discussed the watch with Ward on several occasions, including a conversation that occurred several weeks prior to Ward's passing, which Drewry understood as a clear indication that the bequest was still in place. Drewry also testified that Ward never mentioned that she would not bequeath the watch to Drewry upon her death. Sarah Messersmith ("Messersmith"), the estate planning attorney to whom the first two pages of the handwritten document are addressed, testified that although she had not previously represented Ward, she was notified by Jordan that Ward might contact her about updating her will. Ward never contacted Messersmith, however. Jordan testified that he told Ward—shortly before the date of the Notes—that he would have an attorney contact her and that he had contacted Messersmith about possibly representing Ward. Jordan also testified that Ward told him that she kept her important papers in her bedroom.
No evidence was presented disputing that the pages in the Notebook were handwritten by Ward and that the signatures therein are hers. Additionally, no question has been raised regarding Ward's testamentary capacity.
Although Jordan is a licensed attorney, his license was not active at the time because he was employed in the banking industry in a non-legal capacity.
After the June 29, 2016, hearing, the Court took the matter under advisement and granted the parties leave to submit post-hearing briefs.
Positions of the Parties
Jane J. Ishon and Eugene M. Jordan, II
Ishon and Jordan argue that the handwritten documents constitute a valid holographic will and that they supplant the 1995 Will in its entirety. They assert that to determine the validity of a holographic will, the Court must look at the four corners of the document and analyze only the plain language. They contend that the handwritten documents and the 1995 Will should only be read together to determine testamentary intent. They assert that the finality requirement was met, even absent ending punctuation, because the 2014 Will requires that all of Ward's debts be paid, and both the Notes and the 2014 Will are signed. Ishon and Jordan further argue that because the 2014 Will does not specify any personal property bequests, the 2014 Will's percentages apply to Ward's entire estate. They contend that the handwritten documents should not be viewed as amendments to the Trust percentages—despite the Trust including percentages and the 1995 Will not including percentages—because the prior Trust amendments were labelled as "Amendments," whereas the handwritten documents are not.
There is no dispute regarding the Trust documents or funding of the Trust.
Ms. Edgar and the Drewrys
Defendants Sylvia Edgar ("Edgar") and Letia and Alex Drewry (the "Drewrys") argue that the Notes and the 2014 Will do not constitute a valid holographic will and that, even if they did, they would supplant only Article 4 of the 1995 Will. (Br. in Further Supp. of Memo. in Opp'n to Mot. to Set Up Holographic Will 10.) In support they assert that because page one is labelled "Notes," all four consecutively numbered pages are simply notes and are not testamentary in nature. (Id. at 4-5.) Edgar and the Drewrys further argue that the list of percentages in the 2014 Will match the construction of the Trust and not the 1995 Will and therefore were not intended by Ward to replace the 1995 Will.
Edgar and the Drewrys contend that even if the 2014 Will were valid, it needs to be reconciled with the 1995 Will. (Id. at 7.) They argue that Section 64.2-404 of the Code of Virginia governs the standard of proof and that the Notes and the 2014 Will must be read as one document in light of the fact that they are consecutively paginated. (Id. at 3-4.) They note that the statute provides that wills not adhering to Section 64.2-403 may still be valid wills if their validity can be proved through clear and convincing evidence, which they assert is the appropriate burden here. (Id.)
Edgar and the Drewrys further argue that the holographic documents lack testamentary intent on their face. (Id. at 5.) They analogize the case at bar to a Virginia Supreme Court case in which a holographic document—which was still attached to a notebook, was not signed, did not end with a punctuation mark, and did not provide a clear disposition of property—was found to not be a valid holographic will. (Id. (discussing Payne v. Rice, 210 Va. 514, 518, 171 S.E.2d 896, 829 (1970)).) They assert that the circumstances in Payne—some of which also are present here—are dispositive. (Br. in Further Supp. of Mem. in Opp'n to Mot. to Set Up Holographic Will 5.) They also contend that because the document is labelled as "Notes to Sarah Messersmith," the testator did not intend for the holographic documents to operate as a valid will. (Id.)
Edgar and the Drewrys assert that the holographic documents lack testamentary intent in light of the extrinsic evidence. (Id. at 5-7.) They contend that because Ward never met Messersmith to update her will, Ward did not intend the holographic documents to act as a valid will. (Id. at 6.) They also argue that because (1) Ward kept her important papers in her bedroom and her personal notes in her kitchen and because (2) the 1995 Will was found in the bedroom and the holographic documents were found in the kitchen, the holographic documents were not intended to operate as Ward's last will and testament. (Id.) They further assert that because Ward had conversations with Drewry about the Rolex watch bequeathed to Drewry pursuant to the Memo, Ward intended the 1995 Will—and not the holographic documents—to operate as Ward's valid will. (Id. at 6-7.)
Edgar and the Drewrys finally argue that even if the holographic documents were deemed to be a valid holographic will, they must be reconciled with the 1995 Will. (Id. at 7.) When reconciling, they assert that the court should find that the specific personal property bequests in the Memo are not inconsistent with the percentage bequests in the 2014 Will and that the personal property bequests in the 1995 Will therefore should stand. (Id. at 8-9.)
Daniel Miles, III, Jason W. Miles, Winona Miles, and Daniel Miles, Jr. (the "Mileses")
The Mileses argue that the holographic documents constitute a valid holographic will and replace the 1995 Will in its entirety. (Am. Suppl. Br. in Supp. of Mot. to Set Up Holographic Will 6.) They contend that the 2014 Will conforms to Section 64.2-403 of the Code of Virginia and that the clear and convincing standard of Section 64.2-404 is not applicable. (Id. at 6-7.) The Mileses argue that the validity of the holographic documents therefore must be proved only by a preponderance of the evidence. (Id. at 6.)
The Mileses contend that the holographic documents, read together, evince testamentary intent based on their plain language. (Id. at 4.) They analogize the instant case to a Virginia Supreme Court case that found that testamentary intent existed for a signed holographic document titled "Will," because such conduct was inconsistent with someone making merely notes. (Id. (discussing Thomas v. Copenhaver, 235 Va. 124, 127, 365 S.E.2d 760, 762 (1988)).) They further contend that Payne v. Rice is not applicable because the holographic documents in the case at bar are signed, unlike the holographic document in Payne. (Id. at 3 n.1.) The Mileses also assert that if extrinsic evidence were admissible, such evidence suggests that Ward intended the holographic documents to act as her valid will. (Id. at 5.) The Mileses contend that Ward was very familiar with her estate planning documents and that she knew the difference between her will and her trust. (Id.) They also note Ward's demonstrated ability to amend her estate documents and her history of doing so. (Id.)
Lastly, the Mileses argue that because the holographic documents constitute a valid holographic will, they replace the 1995 Will in its entirety. (Id. at 6.) In support of their position, they argue that bequeathing percentages of an estate is inconsistent with bequeathing specific personal property. (Id. at 7.)
Peninsula Society for the Prevention of Cruelty to Animals ("SPCA")
The SPCA argues that the Notes and the 2014 Will are not wholly in Ward's handwriting, are not signed by Ward, and/or lack testamentary intent (SPCA General Denial & Affirmative Defenses ¶ 2), but the SPCA fails to allege facts or law to support these claims.
Animal Aid Society, Inc., the Trustees of St. John's Episcopal Church, The Mariner's Museum, The Colonial Williamsburg Foundation, Virginia Holocaust Museum, and The Alumni Association of the University of North Carolina at Greensboro, Inc.
None of these defendants makes any argument regarding the validity of the Notes or the 2014 Will or their effect on Estate disposition. (See Animal Aid Society, Inc.'s Answer; St. John's Episcopal Church's Answer; The Mariner's Museum's Answer; The Colonial Williamsburg Foundation's Answer; Virginia Holocaust Museum's Answer; Answer of Alumni Association of the University of North Carolina at Greensboro, Inc.)
Analysis
Legal Standard
"It is well settled that the paramount rule in testamentary construction is that the intention of the testator controls, unless it is contrary to an established rule of law." Thomas v. Copenhaver, 235 Va. 124, 128, 265 S.E.2d 760, 763 (1988).
"The requirements for a holographic will are set forth in Virginia's statute of wills." Berry v. Trible, 271 Va. 289, 297, 626 S.E.2d 440,444 (2006) (referring to Va. Code § 64.1-49, which was replaced by Va. Code § 64.1-403). "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." Va. Code Ann. § 64.2-403(B) (2012 Repl. Vol.).
Where a document "was not executed in compliance with § 64.2-403, the document . . . shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document . . . establishes by clear and convincing evidence that the decedent intended the document . . . to constitute [a testamentary document]." Va. Code § 64.2-404(A).
Like any will, a decedent must intend for a holographic will to be the "final disposition of her property." Berry, 271 Va. at 298, 626 S.E.2d at 444. The finality of testamentary intent does not need to be conveyed in any particular form, but it must be apparent from the face of the document itself. Thomas, 235 Va. at 127, 265 S.E.2d at 762 (1988). "[E]xtrinsic evidence is not admissible either to prove or disprove it." Fenton v. Davis, 187 Va. 463, 467-68, 47 S.E.2d 372, 374 (1948) (quoting Hamlet v. Hamlet, 183 Va. 453, 461, 32 S.E.2d 729 (1945)). Once evidence of final testamentary intent is found on the face of the document, however, courts then may look to extrinsic evidence "to determine whether the instrument is testamentary in nature." Bailey v. Kerns, 246 Va. 158, 164, 431 S.E.2d 312, 316 (1993). Although a document not intended to be a will may qualify as a valid testamentary document, it must "contain[] a disposition of the property, to take effect after the death of the testator." Henderson v. Henderson, 183 Va. 663, 667, 33 S.E.2d 181, 183 (1945).
If a subsequent will is deemed valid, courts must determine that will's effect on any previous wills. See Gordon v. Whitlock, 92 Va. 723, 729, 24 S.E. 342, 344 (1896). A will is not limited to "one testamentary paper[; i]t may consist of several different testamentary papers, of different dates, and executed and attested at different times." Schultz v. Schultz, 51 Va. 358, 373 (1853). Each paper is entitled to be admitted to probate. Gordon, 92 Va. at 729, 24 S.E. at 344. Where there are two separate but valid testamentary documents, they are to be regarded as one testamentary disposition if the latter does not revoke the former. Bradshaw v. Bangley, 194 Va. 794, 800, 75 S.E.2d 609, 612-13 (1953). To be read as one final disposition, separate testamentary documents need not refer to each other in express terms. Gordon, 92 Va. at 727, 24 S.E. at 343.
"Ordinarily, a will does not revoke a former will unless it purports to do so, or makes a disposition of the testator's property so inconsistent with that made in the former will that the two instruments cannot stand together." Bradshaw, 194 Va. at 798, 75 S.E.2d at 612 (quoting 57 Am. Jur., Wills, § 466, at 326). Virginia law does not easily allow complete revocation of a previous will: intent to revoke a will in its entirety must be "clearly manifested." Gordon, 92 Va at 729, 24 S.E. at 344. The burden of proving intent to revoke is on the "party impugning the earlier will, . . . and, in deciding such a question, conjectures or slight probabilities will not be sufficient." Id. The words "this is my last will" is not, by itself, sufficient to prove intent to revoke a former will. Id. "A will does not entirely revoke a prior one if it bequeaths different property or fails to dispose of substantial interests of the testator which are covered by a prior instrument." Bradshaw, 194 Va. at 799, 75 S.E.2d at 612 (quoting 57 Am. Jur. Wills § 476, at 333).
"If a testator executes a will or codicil in the manner required by law that . . . contains provisions inconsistent with a former will or codicil, such former will or codicil is revoked and superseded to the extent of such . . . inconsistency if the later will or codicil is effective upon the death of the testator." Va. Code § 64.2-410(C). "It is more or less to be expected . . . that there shall be some conflict between a codicil and a will . . . ." Simmons v. Gunn, 156 Va. 305, 309, 157 S.E. 573, 574 (1931). If a conflict in the language of the two documents arises, the provisions in the most recently executed document prevail. Henderson, 183 Va. at 668, 33 S.E.2d at 183. Any inconsistencies in the documents must be "clearly irreconcilable" for the latter will to displace the former. Schultz, 51 Va. at 374. When reconciling multiple, valid testamentary papers, courts are to use their best efforts to preserve both documents, adopting "such a construction as will give effect to both." Whittle v. Roper, 149 Va. 896, 903, 141 S.E. 753, 755 (1928) (quoting 1 Jarman on Wills 172 (6th ed.)). Courts should take into account the intentions of the testator "from the provisions of the wills taken together and in the light of the surrounding circumstances." Id. at 905, 141 S.E. at 756. Courts also should presume that testators intend to devise their entire estates. See Thomas, 235 Va. at 129, 365 S.E.2d at 763.
Discussion
The Court has considered the pleadings; evidence and oral argument presented at the June 29, 2016, hearing; the post-hearing submissions; and applicable authorities. The Court now rules on the issues before it.
A. The Burden of Proof
Although the standard of proof to establish the validity of a will conforming to Section 64.2-403 of the Code of Virginia is not expressly stated in the statute, the validity of wills not conforming to statutory form must be proved by clear and convincing evidence. Va. Code Ann. § 64.2-404 (2012 Repl. Vol.). Because the Court finds that the 2014 Will satisfies the requirements of Section 64.2-403, as discussed infra, the clear-and-convincing standard does not apply. Rather, as the Virginia Supreme Court has held, the applicable standard of proof on a proponent to establish the validity of a will is a preponderance of the evidence. Grady v. Fauls, 189 Va. 565, 569, 53 S.E.2d 832 (1949); see also 3 Page on Wills § 29.16, at 521 (2004 & Supp. 2016) ("The burden of proof which rests upon the proponent to establish the valid execution of the will, is satisfied if the essential facts are established by a preponderance of the evidence.").
The burden of proving the testator's intent to revoke a testamentary instrument, by contrast, is on the "party impugning the earlier will, . . . and, in deciding such a question, conjectures or slight probabilities will not be sufficient." Gordon v. Whitlock, 92 Va. 723, 729, 24 S.E. 342, 344 (1896). The Virginia Supreme Court has held that "unless the intention of the testator to revoke is clearly manifested, both wills must stand, except where they necessarily conflict." Id.
B. The Notes Lack the Finality of Testamentary Intent.
As an initial matter, Edgar and the Drewrys argue that the Notes must be read together with the 2014 Will because the two documents are consecutively paginated in the Notebook. The Court does not agree. Although the two documents are contained in the same notebook—and Ward apparently numbered only these four pages—it does not follow that they constitute a single document. Each document has its own title, each is signed by Ward, and each is dated. The documents also vary in subject matter and are not inextricably linked: the Notes express Ward's intentions regarding her power of attorney and medical power of attorney, whereas the 2014 Will bequeaths property. In fact, the only thing connecting the two documents is the pagination. Based on the circumstances, the Court finds that the Notes and the 2014 Will are two separate documents and that they need not be read together.
Not only is each document dated, each bears a different date: the Notes are dated January 16, 2014, and the 2014 Will is dated January 17, 2014.
The Court finds that the Notes do not constitute a valid testamentary instrument because the finality of testamentary intent is not apparent from the face of the document. Although the "Notes" label is not dispositive—because a valid testamentary instrument need not have any particular form—the face of the document demonstrates that Ward intended it to take effect before her death. The document requests that the named individuals have "the power of attorney & medical power of attorney & to serve in any other legal capacity on my behalf." A medical power of attorney, by definition, is operable only during a person's life. Further, powers of attorney automatically terminate upon the death of the principal. See Va . Code Ann. § 64.2-1608(A) (2012 Repl. Vol.). Consistent with the statute, a Virginia Circuit Court held that a power of attorney—which was to take effect during the testator's life but not terminate upon his death—was not a valid will due to a lack of testamentary intent, even though the document expressly attempted to extend the power of attorney beyond the testator's death. Shakeel v. Khanum, 62 Va. Cir. 188, 196 (Fairfax Cty. 2003) (holding that "[i]f the power of attorney is valid as a power of attorney, it must not be a valid Will for want of true testamentary intent"). Further, the provision in the Notes identifying service in "any other legal capacity" is considerably broad and provides no indication that the service is consistent with a finality of testamentary intent. In short, nothing in the Notes implies that the provisions are operable only upon Ward's death; rather, the Notes appear intended to operate during Ward's life. See Henderson v. Henderson, 183 Va. 663, 667, 33 S.E.2d 181, 183 (1945) (holding that a valid testamentary document must "contain[] a disposition of the property, to take effect after the death of the testator" (emphasis added)). The Court therefore finds that, in light of the circumstances, the Notes lack the finality of testamentary intent and are not a valid testamentary instrument.
In short, the Court finds that the Notes do not affect the 1995 Will. They also do not affect the 2014 Will because, as stated above, the two handwritten documents are separate documents and need not be read together. The Court therefore rejects the argument that the 2014 Will's finality is undermined by the "Notes" label.
C. The 2014 Will Is a Valid Holographic Will.
The Court is satisfied that, with respect to the 2014 Will, Ishon and Jordan have satisfied their burden of proving, by a preponderance of the evidence, that the elements of a valid holographic will—as set out in Section 64.2-403 of the Code of Virginia—have been met. Einselen and Edmonson, both uninterested parties, testified at the June 29, 2016, hearing that the handwriting in the 2014 Will and the signature at the bottom of page four are Ward's, and no contrary evidence was presented to dispute these facts.
From the face of the document, the Court finds that Ward intended the 2014 Will to be a valid holographic will. In fact, any confusion that might exist regarding her testamentary intent only arises when looking at the 2014 Will in light of the 1995 Will. Perhaps most significantly, Ward labeled the 2014 Will "Last Will & Testament," indicating that she intended for the listed percentage bequests to be effective upon her death and not to merely be inter vivos gifts. The 2014 Will also specifies that the bequests are to be made after payment of all of Ward's debts, including fees to her executors; because an executor's role is to administer a person's estate only upon death, this clause also indicates that Ward intended the 2014 Will to be effective only upon her death.
Edgar and the Drewrys argue that the 2014 Will lacks the finality required of wills because, as in Payne, the document was still attached in a notebook, has no ending punctuation, and lacks a clear disposition of the residue of Ward's estate. Payne v. Rice, 210 Va. 514, 518, 171 S.E.2d 896, 899 (1970). They also argue that these factors are dispositive. The Court disagrees with these arguments. First, no single set of factors is dispositive: a will must be viewed "as a whole," with effect given to "all its parts," and "if the testator's intention is ascertainable," her purpose will prevail. Thomas v. Copenhaver, 235 Va. 124, 128, 365 S.E.2d 760, 763 (1988) (finding the fact that "the decedent dated the document and signed her name at the bottom" was "inconsistent with that of a person who was simply making notes of things she wanted to put in her will at some future point"). Significantly, unlike in Payne, the 2014 Will is signed by the testator, indicating finality. Cf. Payne, 210 Va. at 518, 171 S.E.2d at 829. The Court finds that the lack of ending punctuation in the 2014 Will is not noteworthy in light of Ward's concluding signature and the clear conclusion of thought. The document ends with a listing of bequests expressed in percentages, and the bequests add up to 100%. On its face, the 2014 Will therefore appears to dispose of all of Ward's property and is not "incomplete." Cf. id. Even though the set of assets to be bequeathed by percentages is not specified, the Court infers that Ward intended to bequeath her entire estate. See Thomas, 235 Va. at 129, 365 S.E.2d at 763. Because all of Ward's property is disposed of, a residuary clause is unnecessary; thus, the absence of such a clause does not affect the 2014 Will's finality.
Of note, although Ward signed and dated the 2014 Will, she also signed and dated the Notes.
Additionally, because the bequests are expressed in the form of a list, the lack of ending punctuation—as well as the lack of punctuation at the end of each listed bequest—is not surprising.
As discussed infra, the Court finds that the set of assets bequeathed by the 2014 Will consists of Ward's entire estate after distribution of the specific personal property bequests listed in the Memo.
Because the face of the 2014 Will evidences Ward's testamentary intent, the Court may look to extrinsic evidence "to determine whether the instrument is testamentary in nature." Bailey v. Kerns, 246 Va. 158, 164, 431 S.E.2d 312, 316 (1993). Ward apparently was very familiar with her estate and trust documents, as well as the difference between the two. She personally drafted several amendments to the Trust and at least one "revised" memorandum to her will bequeathing personal property. The Court therefore finds that Ward did not intend the 2014 Will to be a trust amendment, as argued by some of the defendants. For the same reasons, the Court finds that Ward's failure to meet with Messersmith does not indicate Ward intended not to execute the 2014 Will. Based on the evidence, Ward had not previously consulted with Messersmith or any other estate attorney when drafting amendments to her estate documents, and no other evidence was presented indicating that Ward did not view the 2014 Will as final upon her signature.
Edgar and the Drewrys argue that the locations in which the 1995 Will and the Notebook were found are significant. Specifically, they claim that because (1) Ward kept some important papers in her bedroom and some personal notes in her kitchen, and (2) the 1995 Will was found in Ward's bedroom and the 2014 Will was found in her kitchen, that the 2014 Will was not intended to act as an official document. The Court is not persuaded. Surely Ward would not have intended her 1995 Will to automatically become invalid merely because she left it on the kitchen table or in the living room after reviewing it; it therefore does not follow that the 2014 Will is invalid because it was found in the kitchen.
The Court finds that the 2014 Will conforms to the elements set forth in Section 64.2-403 of the Code of Virginia for a holographic will. The Court further finds, in light of the totality of the circumstances, that the 2014 Will itself—as well as the extrinsic evidence—indicates that Ward intended the 2014 Will to finally dispose of her property and to be effective upon her death. The Court finds that Ishon and Jordan therefore have satisfied the burden of proving that the 2014 Will is a valid holographic will and is entitled to admission to probate.
D. The 2014 Will Supplements and Only Partially Revokes the 1995 Will.
Because the Court has found that the 2014 Will is a valid holographic will, it also must determine the effect the 2014 Will has on the 1995 Will. The 1995 Will's validity is uncontested. Absent a clear revocation of the 1995 Will, the Court therefore must attempt to reconcile the two documents into one testamentary disposition. See Bradshaw v. Bangley, 194 Va. 794, 800, 75 S.E.2d 609, 612-13 (1953) ("When a later testamentary instrument does not revoke a former testamentary instrument they are to be construed together as one." (quoting 69 C.J. Wills, § 1163, at 120)).
Because there is no express revocation clause or any evidence that clearly manifests Ward's intention for the 2014 Will to completely revoke the 1995 Will, the Court finds that there is no express revocation of the 1995 Will. See Gordon v. Whitlock, 92 Va. 723, 727, 24 S.E. 342, 344 (1896); see also Bradshaw, 194 Va. at 798, 75 S.E.2d at 612 (quoting 57 Am. Jur., Wills, § 466, at 326 ("Ordinarily, a will does not revoke a former will unless it purports to do so, or makes a disposition of the testator's property so inconsistent with that made in the former will that the two instruments cannot stand together."). The fact that the 2014 Will is titled "Last Will & Testament" also does not necessarily mean Ward intended to revoke the 1995 Will. See id. That the two wills bequeath different property likewise is not evidence that the 2014 Will was intended to revoke the 1995 Will. See Bradshaw, 194 Va. at 799, 75 S.E.2d at 612 (1953).
To determine if the 2014 Will partially revokes the 1995 Will, the Court must resolve any inconsistencies between the two wills. See Va . Code Ann. § 64.2-410(C) (2012 Repl. Vol.). There are two arguable inconsistencies between the two documents: (1) the 2014 Will specifically requests Ward's executors be paid, whereas the 1995 Will does not explicitly provide for such payment, and (2) the 1995 Will bequeaths tangible personal property to specific individuals and bequeaths the residuary to the Trust, whereas the 2014 Will—viewed in isolation—appears to bequeath the entire Estate by percentages with no personal property bequests or residuary.
Article 2 of the 1995 Will states, "[A]ll administration expenses, payable in any jurisdiction by reason of my death . . . shall be paid out of and charged generally against the principal of my residuary estate." By contrast, the 2014 Will provides, "After payment of all debts which include normal fees to my executors (& I insist that they be paid), I wish to leave the following bequests: . . ." The Court finds that the 2014 Will simply clarifies that the executors be paid—in addition to other administrative costs related to Ward's death—and that that Estate debts be paid first; these two provisions therefore are not "incapable of standing together." See Bradshaw, 194 Va. at 799, 75 S.E.2d at 612. The Court therefore finds that the above provision of the 2014 Will supplements Article 2 of the 1995 Will, such that all Estate debts, including executor fees, are to be paid prior to disposing of any of the Estate assets.
With respect to Article 3 of the 1995 Will, the facts in this case resemble those in Whittle v. Roper, in which one will did not specifically devise the property in question, but rather disposed of the property via a residuary clause. 149 Va. 896, 901-02, 141 S.E. 753, 755 (1928). A second will, however, specifically devised such property. Id. In that case, the court found that specifically devising property in one will and disposing of it pursuant to a residuary clause in another produced no inconsistency between the wills. Id. at 904, 141 S.E. at 756. As the Virginia Supreme Court noted in Whittle, "the courts will, if possible, adopt such a construction as will give effect to both, sacrificing the earlier so far only as it is clearly irreconcilable with the latter paper; supposing, of course, that such latter paper contains no express clause of revocation, or other clear indication of a contrary intention." Id. at 903, 141 S.E. at 755 (quoting 1 Jarmin on Wills (6th ed.), at 172). In the instant case, the Mileses argue that the two wills are inconsistent because the 2014 Will bequeaths what appears to be 100% of the Estate while the 1995 Will specifically bequeaths certain personal property and contains a residuary clause. The Court disagrees with this position. Under the circumstances, the Court finds—especially in light of the fact that Ward was very meticulous in planning the disposition of her estate—that Ward did not intend for the general, monetary bequests in the 2014 Will to displace the specific personal property bequests contained in the 1995 Will. The conversations between Ward and Drewry—which occurred after the execution of the 2014 Will—about the Rolex watch Drewry was to receive pursuant to the Memo also support the Court's finding that Ward did not intend for the 2014 Will to override the Memo prepared pursuant to Article 3 of the 1995 Will. Further, no evidence was offered that Ward's relationship with any of the eleven bequest recipients changed since she drafted the Memo in 2011 or that there was any other reason Ward would consciously revoke the personal property bequests contained in the Memo. The Court therefore finds that the 2014 Will does not affect Article 3 of the 1995 Will or the Memo.
Of note, in Whittle both wills were executed on the same day, although it was unclear which was executed first. Whittle v. Roper, 149 Va. 896, 902, 141 S.E. 753, 755 (1928). The fact that in this case the specific devise occurred first therefore is immaterial.
Because the 2014 Will does not supplant the tangible personal property bequests pursuant to Article 3 of the 1995 Will and the Memo, and because the 2014 Will directs that the percentage bequests are to be paid only after Ward's debts are paid, the Court finds that Ward intended the 2014 Will to act as a residuary clause. In this context, the 2014 Will is inconsistent with the residuary clause contained in Article 4 of the 1995 Will, which directs that the Estate residuary be paid to the Trust. Although devising property differently between wills via a residuary clause does not necessarily make the two wills inconsistent, id. at 904, 141 S.E. at 756, Ward bequeathed 100% of the Estate assets in the 2014 Will, leaving nothing to the Trust. The Court therefore finds that Ward intended the already funded Trust to receive nothing upon her death, pursuant to the 2014 Will. Because the Court must defer to the latter will when there is an irreconcilable conflict between the two, the Court finds that Article 4 of the 1995 Will is revoked and replaced with the percentage bequests of the 2014 Will. See Henderson v. Henderson, 183 Va. 663, 668, 33 S.E.2d 181, 183 (1945) (holding that to the extent there is a conflict between testamentary instruments, the provisions of the latter instrument prevail).
As for the other provisions of the 1995 Will, the Court is obligated to preserve both documents to the extent possible. See Whittle v. Roper, 149 Va. 896, 903, 141 S.E. 753, 755 (1928). There are no inconsistencies that require partial revocation of Articles 1 or 5 of the 1995 Will; these articles therefore remain valid testamentary instructions.
In light of the circumstances, the Court therefore finds that the 2014 Will supplements the 1995 Will such that the percentage bequests in the 2014 Will completely replace Article 4 of the 1995 Will, and the first paragraph of the 2014 Will supplements Article 2 of the 1995 Will-providing that all Estate debts, including executor fees, are to be paid prior to disposing of any of the Estate assets.
E. Attorney's Fees
In the Complaint, Ishon and Jordan pray for reimbursement of the costs and expenses of this proceeding, including attorney's fees, as administrative expenses against the Estate. Executors of an estate certainly are entitled to the reasonable costs and expenses associated with the administration of the estate. Executors—as part of the administration of an estate—have a duty to pursue claims on behalf of the estate, which include seeking aid and direction from the court when, inter alia, provisions in a testamentary instrument may be susceptible to differing interpretations. The Court finds that Ishon and Jordan acted properly in seeking clarification regarding the validity of the 2014 Will and its effect on the 1995 Will, as the 2014 Will is susceptible to differing interpretations. Because filing and pursuing the Complaint—in order to resolve a disputed testamentary instrument—is consistent with the duties of executors, the Court finds that Ishon and Jordan are entitled to reimbursement of the reasonable costs and expenses of this proceeding, including attorney's fees, as administrative expenses against the Estate.
Executors also have a statutory right to fiduciary compensation. Va. Code Ann. § 64.2-1208 (2012 Repl. Vol.). Such compensation is not being sought in this proceeding, however. --------
If the parties cannot agree on the reasonable costs and expenses of this proceeding, including attorney's fees, to which Ishon and Jordan are entitled, Ishon and Jordan may contact the Court within thirty days to schedule an evidentiary hearing on the issue.
Conclusion
The Court finds that the Notes and the 2014 Will are separate documents and that the Notes lack the finality of testamentary intent. The Notes therefore have no effect on either the 1995 Will or the 2014 Will. The Court also finds that the 2014 Will satisfies the statutory requirements for a valid holographic will, with the testamentary intent apparent from both the face of the 2014 Will and the extrinsic evidence presented. The 2014 Will therefore is a valid testamentary document and is entitled to admission to probate along with the 1995 Will. The Court finds that the preamble of the 2014 Will is not inconsistent with Article 2 of the 1995 Will and thus supplements it without revoking it. The 2014 Will percentage bequests are not inconsistent with the tangible personal property bequests in Article 3 of the 1995 Will and the Memo; Article 3 of the 1995 Will and the Memo therefore have not been revoked. Because the 2014 Will was intended to be a residuary clause, the 2014 Will is irreconcilable with and therefore completely replaces Article 4 of the 1995 Will. The remaining portions of the 1995 remain in effect.
The Court directs counsel for Jordan and Ishon to prepare and circulate an Order consistent with the ruling in this Opinion and submit it to the Court for entry within fourteen days.
Sincerely,
/s/
David W. Lannetti
Judge Designate DWL/bes/jk