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One will, plus two handwritten notes

A woman who made a will in 2006 tried to update her will with handwritten notes in March and December of 2012. When she died in November of 2014, only one of the handwritten notes worked as a codicil to give one of her grandsons $50,000, a Fairfax Circuit Court decided on March 24.

Helen McKagen was survived by three grandchildren and her daughter-in-law. She named one grandson as her executor. He moved to probate the two handwritten notes.

A note dated March 2, 2012, stated McKagen “would like Ian to have $50,000,” stated where to find Ian’s address, and was signed “Helen W. McKagen.”

The second note, dated Dec. 7, 2012 and addressed to the executor, said, “If my assets are over $750,000 at the time of my demise, I would like Ian to have $50,000.00. It’s not in the will but I trust you. That is my wish. Thanks, Helen.”  The margin of the note again stated where to find Ian’s address.

Fairfax Circuit Judge Robert J. Smith checked off the list for proving the notes as holographic codicils.

Two disinterested witnesses identified the handwriting in the notes as McKagen’s, and their testimony was not challenged. Although McKagen did not sign the second note with her full name, Virginia Supreme Court precedent supported accepting her first name, after “Thanks,” as her signature.

Finally, and fatally for the first note, the writing had to express McKagen’s testamentary intent. The bare expression of her wish for Ian to have $50,000 in the March note gave no indication of when the gift was to occur.

But the December note’s reference to the valuation of McKagen’s “assets” at the time of her “demise” made it clear that she intended Ian to have that share of her estate. The court admitted the second note to probate.

The case is In re: Estate of Helen W. McKagen.

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