DONAL A. IRVING, IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF DECLAN PATRICK IRVING
CAROL DIVITO, ET AL.
THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith,
PRESENT: All the Justices
WILLIAM C. MIMS, JUSTICE
appeal, we consider whether the circuit court erred by
concluding that a holographic writing did not comply with
Code §§ 64.2-403 or -404.
Background and Procedural History
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.
Declan's death, his brother, Donal Irving, found two
notes Declan left in his hotel room. 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.
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:
I wish to remove Patrick named as my son entirely from this
will - no benefits.
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.
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.
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 Code §
64.2-403, whether it should, nevertheless, be found by clear
and convincing evidence that the decedent created the