Berry v. Trible
626 S.E.2d 440, 2006 Va. LEXIS 27, 271 Va. 289 (2006)
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Rule of Law:
A purported holographic will is invalid if its handwritten entries are interwoven with typewritten material and cannot be understood as a complete testamentary instrument without reference to that material. A court must consider all handwritten entries made by the testator, not just selected portions advanced by the will's proponent.
Facts:
- Louise Trible St. Martin (Louise) had an executed 1993 will that named her husband as the primary beneficiary and her niece, Tamara Mowbray Berry (Tamara), as the contingent beneficiary.
- After Louise's husband died in 1997, her relationship with Tamara deteriorated.
- While hospitalized in September 1997, Louise instructed her attorney, Mildred Slater, to draft a new will leaving her entire estate to her sister, Esther Maddox Trible (Esther).
- Slater sent a seven-page typewritten draft will to Louise at the hospital.
- Louise made extensive handwritten edits, additions, and notes on all pages of the typewritten draft, signed the bottom of each page, and had a nurse fax the marked-up document back to Slater.
- The handwritten entries included the phrase 'I Give and bequeath all,' with an arrow pointing to the handwritten name 'Esther Maddox Trible' on one page.
- Louise subsequently refused to speak with Slater about finalizing the changes for a new, formal will.
- After Louise's death in 2002, the original 1993 will was found, but the original 1997 marked-up document was lost; only the fax copy from Slater's files was available.
Procedural Posture:
- Tamara Mowbray Berry submitted Louise's 1993 will for probate in the circuit court (trial court).
- Esther Maddox Trible filed a separate complaint in the same court to establish the 1997 marked-up document as a valid lost holographic will.
- The circuit court consolidated the two actions and granted partial summary judgment to Tamara, finding the 1993 will was properly executed.
- The case proceeded to a jury trial on the validity of the 1997 document.
- The jury returned a verdict finding that a selected portion of handwriting on the 1997 document constituted Louise's valid will and that it had not been revoked.
- The circuit court entered a final decree in accordance with the jury's verdict, giving effect to the 1997 holographic will.
- Tamara's motion to set aside the verdict was denied by the circuit court.
- Tamara (appellant) appealed the circuit court's final decree to the Supreme Court of Virginia.
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Issue:
Do selected handwritten phrases on a multi-page, typewritten draft will constitute a valid holographic will when the document contains numerous other substantive handwritten entries that are physically and contextually interwoven with the typewritten text?
Opinions:
Majority - Justice Keenan
No. Selected handwritten notations on a typewritten document do not constitute a valid holographic will when they are interwoven with and dependent on the typewritten text for their meaning. A holographic will must be wholly in the testator's handwriting and must be evaluated based on all the testator's handwritten entries on the document, not just favorable portions selected by a proponent. Here, Louise's handwritten entries, such as 'Article # Two,' arrows connecting to typed text, and margin notes, were physically and contextually intertwined with the typewritten draft. The signature at the bottom of each page containing both typed and handwritten material created ambiguity as to her intent. Because the handwritten language, considered as a whole, is not self-contained and cannot be understood without reference to the typewritten text, it fails to meet the statutory requirements for a holographic will. The 'surplusage' theory does not apply because it cannot be used to disregard substantive handwritten entries or typewritten text that is necessary to understand the handwritten portions.
Analysis:
This decision significantly clarifies the 'surplusage' doctrine as it applies to holographic wills in Virginia, establishing a clear limitation on its use. The court created a strong precedent against proponents 'cherry-picking' favorable handwritten phrases from a mixed-media document to construct a will after the fact. This ruling reinforces the requirement that the holographic portions of a document must form a complete, intelligible testamentary instrument on their own. Future courts will now apply a more holistic analysis, considering all handwritten entries and their relationship to any non-holographic text, thereby protecting testamentary intent from post-mortem manipulation.
