By Sarah Schmidt, Esq.
Due in large part to the ever informative Google search bar, estate planning attorneys often see clients who undertake to draft or revise their own estate planning documents (or leave written instructions to their executor) in an effort to save a few dollars on attorneys’ fees. While it is true that a holographic (i.e., handwritten) will can be a valid will admitted to probate in the Commonwealth of Virginia, there are far too many instances in which handwritten notes—regardless of the writer’s intention—cause more harm than good. Indeed, a simple codicil (an amendment to a will) or an entirely new will can cost ten times less than what it would cost to petition the court to have the note declared a will or an amendment to a testator’s will after death.
For example, imagine your father passed away and you find two documents in his safety deposit box. First, a simple will leaving everything to his “descendants.” Second, a handwritten note which states, “I wish to remove Sam named as my son entirely from this will—no benefits.” The note is initialed and dated after the date of the will. So what is an executor to do? Does Sam receive anything from the estate? The problem is now that your father has passed away, one can only look to the evidence to attempt to determine whether he intended to modify his will or whether he was simply leaving a handwritten note.
Unfortunately, absent a private agreement amongst beneficiaries, there is only one way to find out—submit the writing to the court and argue your position. Indeed, a note which was very similar was submitted to the Chesapeake Circuit Court probate clerk for probate. The clerk found that the handwritten note was not a validly executed codicil, and the executor of the estate appealed the clerk’s order to the Circuit Court where litigation ensued. The case was ultimately appealed to the Supreme Court of Virginia. The Supreme Court held that the records supported the Circuit Court’s ruling that the writing was not a codicil, nor intended to be a codicil. See Irving v. DiVito, 294 Va. 465 (2017). Regardless of whether the decedent intended the writing to be a codicil or just a handwritten note, there is absolutely no question that the litigation over the writing cost a significant amount more than a new will or codicil would have cost.
Whatever you do, do not write on your estate planning documents and do not leave handwritten notes without consulting with your attorney. When in doubt, always seek the advice of your attorney.
Ask Kit Kat: Victories for Animals
Hook Law Center: Kit Kat, what can you tell us about the latest victories that animals have won recently to protect their rights?
Kit Kat: Well, this is indeed something to shout about! The two most notable were in California and Florida. Florida I have already talked about in a previous article. Greyhound racing will finally come to an end there in 2020 when dog racing is no longer required at racetracks to keep gambling open. Florida has 11 of the United States’ remaining 17 greyhound tracks. The remaining 6 are not likely to survive on such a small scale.
Which brings us to the victory in California. This is truly something to celebrate, because California is such a large state that its decisions affect a large audience. With the world’s 5th largest economy, this change in culture is bound to have a huge impact. On Nov. 6, 2018, 62% of the voting public approved a measure called Proposition 12 making it illegal to sell eggs, pork, and veal from any farm which cages baby calves, pigs nursing piglets, and hens which are producing eggs. The so-called factory farms have been dealt a huge blow. This means, that any products raised in California, which treat baby animals inhumanely, will not be allowed to be marketed in California. This is extremely important, because California tends to be a trendsetter, and it has such a huge population. The egg and meat industries were against Proposition 12, but the Humane Society of the US and other groups lent their support, and they triumphed! (Karen E. Lange, “Voters demand landmark changes for animals,” All Animals, January/February 2019, p. 10-11)