THE CIRCUIT COURT OF NELSON COUNTY Michael T. Garrett, Judge.
All the Justices
STEPHEN R. McCULLOUGH JUSTICE.
Lee Canody, II, challenges the trial court's order
admitting a will to probate. More specifically, he contends
that the court erred in considering testimony to establish
the testamentary nature of the pages proffered for probate
and erred in failing to require the proponent of the will to
authenticate all three pages of the document. The trial court
properly admitted testimony to refute the claim that the will
was fraudulent and correctly declined to adopt a novel and
more rigorous standard for admitting a will to probate.
Therefore, we affirm its judgment.
the clerk of court refused to probate a document offered as
the last will and testament of Robert Lee Canody, his
daughter, Cheryl A. Hamblin, petitioned the Circuit Court of
Nelson County to have the document probated as her
father's will. See Code § 64.2-445. The
will consists of three computer-generated pages of the same
font and font size. There are no page numbers, and no
paragraphs are split between pages. It is dated March 30,
2014. There are staple holes that line up for all three
pages. The will provides, among other things, that nothing is
to go to Canody's estranged daughter Debra Ann Canody,
that all of his property and possessions are to go to his
daughter Cheryl, and that Cheryl as executor may not
"extend" any property to Canody's son Robert
until he pays off the debts he owes to his
father. Robert opposed the probate of the
to the formalities of execution, April Keziah, an employee of
the DuPont Community Credit Union, explained that she had
come to know Canody as a customer and a friend over the past
seven years. On April 1, 2014, Canody asked Keziah for the
services of a notary, telling her he had a will he wanted
notarized. She recalled the date, the fact that there were
three pages, and that there were no initials on the pages.
She was able to identify the last page of the will but she
had no knowledge concerning the contents of the first two
pages. Two other employees of the credit union signed as
witnesses. Keziah told them they were witnessing a will.
Canody signed first, then the witnesses signed. Kaziah
affixed her notary seal and signature.
Moomaw, one of the witnesses, also testified. He recalled Ms.
Keziah asking him to witness a will and he did so. He too
could not speak to the content of the first two pages, but
recognized the last page as the one he signed. The signing
only took a few minutes.
for Robert raised the prospect that the first two pages of
the will tendered for probate might have been substituted
after the will was executed. As rebuttal to counsel's
suggestion, Gene Hayden testified. Hayden was a close friend
of Canody. Hayden testified that several weeks before Canody
passed away, he asked Hayden to serve as executor of his
estate. Hayden agreed. Canody then told Hayden about how he
intended to dispose of his assets. In particular, Canody did
not want his son Robert to have any money to pay for
Robert's house. In addition, Canody wanted his daughter
to have his land and his house, as well as the house's
contents. Hayden never saw Canody's actual will.
the hearing, counsel for Robert contended that Hayden's
testimony was improperly admitted to establish the
testamentary nature of a writing. In a thoughtful and
thorough memorandum opinion, the trial court concluded that
this testimony was admissible under the authority of
Samuel v. Hunter, 122 Va. 636, 95 S.E. 399 (1918).
The court further concluded that the will offered for probate
met the statutory requirements for a valid will and that it
contained the same three pages as those present at the time
of execution. The trial court directed the clerk to admit the
will to probate. This appeal followed.
trial court properly admitted testimony concerning the
decedent's testamentary plan when the genuineness of the
will was put into question.
contends that the trial court improperly considered
Hayden's testimony "to establish the testamentary
nature of the pages proffered for
probate." Under settled law, "testamentary
intent [must] be ascertained from the face of the paper,
extrinsic evidence being not admissible either to prove or
disprove it." Payne v. Rice, 210 Va. 514, 517,
171 S.E.2d 826, 828 (1970); see also Poindexter v.
Jones, 200 Va. 372, 379, 106 S.E.2d 144, 148 (1958)
("The indicia of testamentary intent must be found in
the paper itself, and evidence aliunde [from another
source] to supply this vital and necessary characteristic is
Samuel, opponents of a will contended that it was
forged. 122 Va. at 637, 95 S.E. at 399. They "offered a
witness to prove certain statements of the testatrix made
subsequent to the date of the alleged will."
Id. Specifically, the party ...