Must a Will/Codicil be Signed?: Virginia Court Finds an Unsigned Codicil to be Valid

By recent letter opinion in the matter of In re George William Estate of Asmuth, the Fairfax Circuit Court held that an unsigned codicil was indeed valid under Virginia Code Section 64.2-404. The letter opinion, while not binding authority across all of Virginia, provides an instructive analysis and look at the legal framework for resolving a relatively common estate dispute scenario: whether a codicil/will which is unsigned is of any legal validity. My colleague Will Sleeth previously wrote an instructive blog post on this topic.

The facts of the case were that a testator (will-maker) (“George”) died in 2021. George signed a Will in 2018, which was admitted to probate in 2021 after his passing. There was, however, another document signed after the 2018 Will which purported to be a Codicil. The Codicil was not signed but George typed his name on the document. The Codicil also includes witness and notary certification pages, which were signed and completed.

After George’s passing, George’s wife filed an aid and guidance petition as to whether the Codicil is valid. A petition for aid and guidance is a lawsuit that a fiduciary can file with the court seeking the Court’s guidance on an issue. In a petition for aid and guidance, the fiduciary does not take a position one way or another, but rather puts the issue before the Court. Notably, a fiduciary generally waives his or her ability to appeal the decision of the Court on an aid and guidance petition.

George’s children were interested parties in the lawsuit are were served by publication. None of the children put forth any arguments on the issue.

In the letter opinion, the Court began its analysis with the definition of a codicil: a supplement or addition to a will that doesn’t dispose of the whole estate, but modifies or qualifies the will somehow. When admitted to probate, a codicil is considered a part of the will.

Virginia Code Section 64.2-403 requires that a will or codicil be in writing and signed by the testator to be valid. It also provides that if the document isn’t in the testator’s handwriting, it is not valid unless (i) the will is signed by the testator, or (ii) it is acknowledged by the testator in the presence of two competent witnesses, present at the same time, and who subscribe the will in the presence of the testator.

If a codicil is not completed in compliance with these requirements, the codicil may still be valid under Virginia Code Section 64.2-404 if it can be shown by clear and convincing evidence that the person intended it to be an addition or alteration of the will. Notably, clear and convincing evidence is generally considered to be a higher standard of proof than “more probable than not” or “by the preponderance of the evidence” often used in civil cases, but less than the “beyond a reasonable doubt” criminal standard of proof.

In reviewing the Will, the Court first made the finding that the Codicil did not meet the statutory requirements for a will under Virginia Code Section 64.2-403 because it was not signed by George. Interestingly, the Court pointed out that Virginia has never defined what a “signature” is. The Court indicated that initials or a mark may be sufficient to be a signature in some instances, with such inquiry being determined on a case-by-case basis based on the facts and circumstances of the case. Ultimately, the question is whether the testator intended the mark or writing to be a signature.

The Court reasoned that when determining whether there is an intent to be a signature, first a court is to look at the document to see if it reveals any intent. Second, a court can then look to extrinsic evidence (evidence existing outside the document at issue) to confirm or disprove that the testator intended to authenticate the document with his or her name.

In looking at the Codicil, the Court mentioned that George typed his name preceded by the word “sincerely.” The Court reasoned that this could be evidence that he intended it to be a signature. The Court also pointed out that the title of the document was “additional changes to last will and testament”.

However, the Court also looked at the Will, upon which the Court noted that George hand-signed his full name at the end. As a result, based on this prior signature, the Court held that there was doubt as to whether the typed version of his name on the Codicil was intended as a signature. As a result, the Court ruled that the Codicil was not valid under Virginia Code Section 64.2-403.

In the alternative, however, the Court concluded that the Codicil was valid under Virginia Code Section 64.2-404, which provides that if a writing fails to meet the requirements of Virginia Code Section 64.2-403, it can still be valid if it is shown by clear and convincing evidence that the document was intended to alter the will.

The Court held that determining intent of this sort was to be done by looking at the face of the document first, and not by extrinsic evidence. Only if some evidence of such intent is shown on the document’s face is a court then permitted to look at extrinsic evidence.

The Court held that the title (“additional changes to last will and testament”), coupled with the presence of witnesses’ signatures on the same, and the reference in the document that such was intended to change his Will, constitutes sufficient evidence of testamentary intent. Based on that showing, the Court reasoned that it could look to extrinsic evidence – i.e., the Will. The Court noted that the Will’s provisions were similar to those of the Codicil – the intent of cremation, and the disinheriting or decreasing the estate shares of certain relatives. Based on this, the Court concluded that the Codicil was intended to modify the Will. For this reason, the Court found that the Codicil was valid under Virginia Code Section 64.2-404.

It is unclear if this decision will be appealed. Moreover, it is important to consider, too, that this case’s resolution may have been different if one or all of the interested parties contested the validity of the Codicil.

This opinion letter, while not binding authority in all of Virginia, provides a useful analysis of the statutory framework used when determining the validity of wills and codicils that are unsigned. Will and estate disputes are full of complex legal issues. If faced with such a dispute, it is best to speak with an experienced estate dispute attorney.

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