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When is Testimony Admissible to Demonstrate a Testator’s Intent?

August 4, 2020

Canody v. Hamblin

This case arose from a challenge to a trial court order to admit an electronically created will to probate. The validity of the challenged document was questioned multiple times prior to the initiation of this claim. At the outset, the clerk of court refused to probate the document offered by Cheryl Hamblin (“Hamblin”) as the last will and testament of her late father, Robert Canody, Senior (“decedent”). Due to this refusal, Hamblin was forced to petition the circuit court to have the document probated. After reviewing the document and listening to testimony from multiple witnesses, the circuit court concluded that the will offered for probate met the statutory requirements for a valid will. Canody v. Hamblin, 816 S.E.2d 286, 288 (2018).

The decedent’s son, Robert Canody, II (“Canody”) challenged the court order, contending that the court (i) erred in considering testimony from the executor (one of the decedent’s close friends, “Hayden”) to establish the testamentary nature of the document and (ii) erred in failing to require the proponent of the will to authenticate all three pages of the supposed will (the witnesses to the will only could identify the last of the will’s three pages). Hamblin, 816 S.E.2d 286, 287. The circuit court affirmed the trial court’s order and Canody appealed the decision to Virginia’s Supreme Court.

In regard to Canody’s contention that admitting testimony from Hayden to establish the nature of the document was improper, the Supreme Court explained:
  [T]hat declarations [regarding the testator’s prior words of testamentary intent], standing alone, are not admissible as direct evidence to prove or disprove the genuineness of the will; but that in all cases where its genuineness has been assailed by other proper evidence, the declarations are admissible as circumstances, either to strengthen or to weaken the assault, according to their inconsistency or their harmony with the existence or terms of the will. 
816 S.E.2d at 288 (quoting Samuel v. Hunter, 122 Va. 636. 638 (1918)). Based on that reasoning, the Court held that the trial court’s consideration of Hayden’s testimony was proper; the testimony was both relevant and admissible. The trial court used Hayden’s testimony to “establish that the first two pages of the will were entirely consistent with Canody’s stated testamentary intentions and to refute the assertion that they were not part of his original will.” Id. at 289. Therefore, the trial court did not error in considering the testimony for those limited purposes.

Canody claimed that because the witnesses to the will did not recognize the first two pages of the document and could only recall the signature page, the first two pages could not be authenticated. Id. Relying on Croft v. Snidow, the Court held that there is “no requirement in the law for witnesses to ‘read [the will] or examine it with such care as to be able, upon application to admit to probate, to say that all the pages or clauses of the proposed will were the pages and clauses signed by the testator and attested by them.’” Id. (quoting 183 Va. 649, 655 (1945)).
 The court concluded that Canody failed to meet his burden for proving fraud. The court held that: Robert’s evidence established, at most, the opportunity for fraud due to the lack of initials on each page, the absence of page numbers, the fact that paragraphs did not carry over on successive pages, and the unfamiliarity of the witnesses with the contents of the first two pages of the will. He never came close, however, to establishing that the will actually was fraudulent… To the contrary, the evidence offered to refute the fraud claim showed that the will tendered for probate was consistent with the expressed wishes of the testator. 
This case clearly demonstrates that while electronically created wills may increase the possibility of fraud, the probate process for electronic wills follows the same strictures that apply in normal probate matters. Both the proponent of the will and the challenger must meet their traditional burdens of proof.  Fraud must be proven, and in the absence of proof the court will not take action because there is a remote possibility that fraud could have occurred. Importantly,(1)outside testimony may be used to demonstrate the testator’s testamentary intent when that intent is questioned by admissible evidence and (2) witnesses need not recall every detail of a will to authenticate that will.