Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Irving v. Divito

Supreme Court of Virginia

December 14, 2017

DONAL A. IRVING, IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF DECLAN PATRICK IRVING
v.
CAROL DIVITO, ET AL.

         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge

          PRESENT: All the Justices

          OPINION

          WILLIAM C. MIMS, JUSTICE

         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.

          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 not executed in strict compliance with Code ยง 64.2-403, whether it should, nevertheless, be found by clear and convincing evidence that the decedent created the document ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.