Ruling Highlights the Need for Testamentary Intent for Holographic Codicil

Signing Last Will and TestamentLast month, the Fairfax, Virginia Circuit Court issued a written opinion that, while it does not break new law in Virginia, illustrates how a writing must demonstrate “testamentary intent” to qualify as a valid holographic codicil.

First, some background: Virginia law provides that:

“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 § 64.2-403(B).

Such a will is called a “holographic will”.  This code section creates an exception to the rule (and the common practice) that the testator signs the will, or

“the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator.”
Va. Code § 64.2-403(C).

Note that certain other writings can be treated as valid wills in certain other circumstances too, but this will be the subject of a future blog post. For our purposes, the key takeaway is that a testator may write out a will entirely in his handwriting, and may sign it, and that will constitute a valid will.

A “codicil” is an amendment to a will (which does not replace the will in its entirety). Therefore, a “holographic codicil” is a writing, entirely in the testator’s handwriting and signed by the testator, that amends the testator’s will. The Virginia Supreme Court has held that a codicil to a will must contain “testamentary intent” in order to be valid. The Court, in Wolfe v. Wolfe, 248 Va. 359, 360 (1994), stated: “The proponent of [a] proposed codicil must show that the writing itself was executed by the testator with the intent that it have testamentary effect” (in other words, that the writing relates to a disposition taking effect at death).

With this background in mind, let’s look at the alleged holographic codicil that was the subject of the court’s ruling in In Re Estate of Helen W. McKagen; CL-2014-15175. In that case, the executor filed a motion to have the following handwritten note probated as a valid holographic codicil to the decedent’s will: “3-2-12 I would like Ian to have $50,000.00. His address is in address book near telephone [sic] in living room. Ian Kustchatka. Signed Helen W. McKagen.”

In analyzing whether the handwritten note qualified as a valid holographic codicil, the court noted that while the writing satisfied the signature requirement, it lacked the required testamentary intent and therefore did not constitute a valid codicil. The court remarked that the fatal flaw was the fact that there was no “indication that this transaction was meant to occur at [the] death” of the testator.

While the ruling does not establish any new binding law in Virginia, it provides a helpful illustration of how courts will apply the “testamentary intent” requirement. In this instance, there was good reason to believe that the testator would have wanted Ian (her grandson) to receive the $50,000.00 upon her death. After all, if she desired to gift Ian $50,000.00 prior to her death, she could have done so (granted, she may have not had $50,000.00 in liquid assets available at that time for various reasons). However, the fact that the testator left identifying information for Ian seems to indicate an expectation on her part that it would be her executor who would locate Ian for purposes of providing him with the testamentary bequest of $50,000.00. Nevertheless, the court ruled that the note lacked “any reference to her will, her estate, or even some time period for when this disposition should be made.” Therefore, Virginia estate litigators should take note that in future cases where a handwritten note lacks such explicit references, they may face a more difficult task in seeking to establish such a note as a valid holographic codicil.



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