A woman’s stated intent to continue tinkering with her will “on my deathbed” did not prevent a Norfolk Circuit Court from finding that a handwritten will found in a notebook in her kitchen after her death was in fact her final word.
Challengers to the will discounted the document, saying the woman kept her important papers in her bedroom, not her kitchen, and that the will’s punctuation lacked the ultimate expression of finality – a period after her division of property.
Undeterred by the missing mark, the court said a 2014 will was a valid holographic will.
The will contest included an appearance as a witness by a lawyer named in the documents, but never contacted by the testator and multiple charitable organizations, and drew attention from a dozen different lawyers.
Both the 2014 will and a 1995 will were admitted to probate, with the later will completely replacing the percentage bequests outlined in the earlier will. All other sections of the 1995 will remained intact, according to the court’s opinion in Ishon v. Animal Aid Society Inc. (VLW 016-8-091).
Mary Ann Ward executed a will in 1995. Her 2011 “Memorandum” to the 1995 will revised a list of personal property bequests to 11 individuals for items such as “square pottery plates,” a “walrus picture” and “paper mache ladies’ heads (on bedroom wall).”
After Ward died, a “Notebook” was found in her kitchen that contained four consecutively numbered pages. The pages included handwritten notes of Jan. 16, 2014, and pages three and four comprised her “Last Will and Testament,” dated Jan. 17, 2014.
The 2014 document was addressed to a local estate-planning attorney who testified that Ward had not contacted her. In the notes, Ward directed payment of all debts, including “normal fees to my executors,” individuals identified on page one. The document went on to list bequests as percentages, for a total of 100 percent. The list did not end with a punctuation mark, but was signed and dated immediately below that list.
Ward previously had made several amendments to the trust, on her own, and had supplemented her will at least once with the memorandum.
In one of her trust amendments, Ward wrote, “I hate to tell you this … but … I’m sure you know I will probably be making changes on my death bed. Sorry about that!”
In a court hearing, the two executors argued that the handwritten documents discovered in 2014 completely supplanted the 1995 will. Even without final punctuation, the 2014 documents directed payment of all Ward’s debts, and was signed and dated by her, they said. The executors also said that because the 2014 will did not include any personal property bequests, its percentages applied to Ward’s entire estate.
Another group of parties also argued the 2014 handwritten notes were a valid holographic will that completely replaced the 1995 will, and that bequeathing percentages of an estate was inconsistent with bequeathing specific personal property.
Two defendants in the will contest argued that all four numbered pages from the Notebook were not testamentary in nature and were merely “notes,” not intended to replace the 1995 will.
They pointed to several factors that purportedly showed a lack of testamentary intent: Ward never contacted the lawyer to whom she addressed her 2014 notes; she kept important papers, including her 1995 will, in her bedroom and the Notebook was found in the kitchen; and Ward discussed her bequest of a Rolex watch to one of the defendants, made in the 2011 Memorandum to the 1995 will, with that defendant.
Even construing the notes as a valid holographic will, it still had to be reconciled with the 1995 will, under Va. Code § 64.2-404, the defendants contended.
Six different charitable organizations stood by, offering no argument regarding the validity of the notes or the 2014 will, or their effect on disposition of the estate.
Two disinterested parties identified the handwriting and signature as Ward’s own. The 2014 holographic will was valid under Va. Code § 64.2-403 and had been established by a preponderance of the evidence, Norfolk Circuit Judge David W. Lannetti said. The newer will, however, did not clearly show Ward’s intention to revoke her prior will.
The 2014 notes covered powers of attorney and showed an intent to take effect prior to Ward’s death, Lannetti said. The court said the 2014 notes and 2014 will covered different subjects and need not be construed together.
Taken as a whole, the 2014 will showed the necessary finality, the court said.
The fact that Ward signed the document showed “the clear conclusion of thought,” even without a period at the end of her last sentence, the judge said. The document ended with a list of bequests, in percentages that added up. The bequests were set out in a list, not in narrative form. The fact that Ward never met the attorney to whom the notes were directed did not necessarily show she had changed her mind about the 2014 will. The location of the documents in the kitchen was not a particularly relevant point, in the court’s mind.
Construing the 2014 will together with the 1995 will, Lannetti identified two “arguable inconsistencies.” Unlike the 1995 will, the 2014 will expressly directed payment of the executors, which the court said was a simple clarification.
The 1995 will also bequeathed tangible personal property to specific individuals and the residuary to the trust, whereas the 2014 will – viewed in isolation – appeared to bequeath the entire estate by percentages with no personal property bequests or residuary.
The court said Ward was “meticulous in planning the disposition of her estate,” and she did not intend for the general, monetary bequests in the 2014 will to displace the specific personal property bequests contained in the 1995 will. Ward intended the 2014 will to operate as a residuary clause, so that the already funded trust would receive nothing upon her death, pursuant to the 2014 will, with the percentage bequests in the 2014 will replacing those made in the 1995 will.
The court also said the executors were entitled to payment of their attorney’s fees as an administrative expense against the estate.s