PRESENT: All the Justices
DAVID VON SCHILLING
OPINION BY
v. Record No. 091055 JUSTICE WILLIAM C. MIMS
June 10, 2010
ROBERT H. SCHILLING, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
In this appeal, we consider whether Code § 64.1-49.1,
effective on July 1, 2007, applies to a writing made in 2005
but not offered for probate as a holographic will until after
the maker’s death in September 2008.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The circuit court decided this case on demurrer. When an
issue has been decided on demurrer, we accept as true the facts
alleged in the pleadings by the plaintiff, who is entitled to
the benefit of all reasonable inferences that may be drawn from
them. Hamlet v. Hayes, 273 Va. 437, 439, 641 S.E.2d 115, 116
(2007). Accordingly, we draw our facts here from the
allegations made by David Von Schilling as the plaintiff below.
On November 22, 2005, Ora Lee Schilling (“Schilling”) made
a writing (“the Writing”) purporting to devise her entire
estate to David Von Schilling (“David”), her son. The Writing
consists entirely of the following words:
LAST WILL AND TESTAMENT
OF
ORA LEE SCHILLING
40 PACIFIC HAMPTON VA
All this to be my last will and testament.
Money in my Bank accoun[t]s and a Condo at 40
Pacific Dr., Hampton, VA and all of my
Belongings, I bequeath to my son David Von
Schilling.
The Writing was handwritten, signed and dated by Schilling, and
acknowledged before a notary public.
Schilling died on September 23, 2008. David offered the
Writing for probate as a holographic will but the clerk refused
to admit it. Instead, the clerk admitted a holographic will
dated March 20, 1984. 1
David filed a petition in the circuit court to establish
the Writing as a subsequent, superseding holographic will. In
the petition, David stated that he wrote the words “40 Pacific
Dr., Hampton, VA” and “I bequeath to” at Schilling’s request.
The remainder of the Writing is in Schilling’s hand.
David’s siblings filed a demurrer arguing that the Writing
was insufficient to be a valid holographic will under Code
§ 64.1-49. They also argued that because Code § 64.1-49.1 took
effect after the Writing was made, application of that statute
would be retroactive and therefore improper. The circuit court
ruled that the application of Code § 64.1-49.1 would be
retroactive and declined to do so. The court sustained the
demurrer and dismissed David’s petition. We awarded David this
appeal.
1
David does not dispute the validity of this will.
2
II. ANALYSIS
“A demurrer tests the legal sufficiency of facts alleged
in pleadings, not the strength of proof. . . . Because the
decision whether to grant a demurrer involves issues of law, we
review the circuit court’s judgment de novo.” Augusta Mut.
Ins. Co. v. Mason, 274 Va. 199, 204, 645 S.E.2d 290, 293 (2007)
(internal citations and quotation marks omitted).
Code § 64.1-49.1 took effect on July 1, 2007, after the
Writing was made but before Schilling died. 2007 Acts ch. 538.
The statute provides that:
Although a document, or a writing added upon a
document, was not executed in compliance with
§ 64.1-49 the document or writing shall be
treated as if it had been executed in compliance
with § 64.1-49 if the proponent of the document
or writing establishes by clear and convincing
evidence that the decedent intended the document
or writing to constitute (i) the decedent's
will, (ii) a partial or complete revocation of
the will, (iii) an addition to or an alteration
of the will, or (iv) a partial or complete
revival of his formerly revoked will or of a
formerly revoked portion of the will.
The remedy granted by this section (i) may not
be used to excuse compliance with any
requirement for a testator's signature, except
in circumstances where two persons mistakenly
sign each other's will, or a person signs the
self-proving certificate to a will instead of
signing the will itself and (ii) is available
only in proceedings brought in a circuit court
under the appropriate provisions of this title,
filed within one year from the decedent's date
of death and in which all interested persons are
made parties.
3
Code § 64.1-49.1.
In general, “retroactive laws are not favored[;] a statute
is always construed to operate prospectively unless a contrary
legislative intent is manifest.” Berner v. Mills, 265 Va. 408,
413, 579 S.E.2d 159, 161 (2003); Adams v. Alliant Techsystems,
Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356 (2001) (quoting
Duffy v. Hartsock, 187 Va. 406, 419, 46 S.E.2d 570, 576 (1948))
(internal quotation marks omitted). However, “[a] will is an
ambulatory instrument, not intended or allowed to take effect
until the death of the maker. . . . While he lives his written
will has no life or force, and is not operative or effective
for any purpose.” Timberlake v. State-Planters Bank of
Commerce & Trusts, 201 Va. 950, 957, 115 S.E.2d 39, 44 (1960).
“The death of the maker for the first time establishes the
character of the instrument.” Spinks v. Rice, 187 Va. 730,
740, 47 S.E.2d 424, 429 (1948) (quotation marks omitted).
Thus, a determination whether a writing offered for probate is
a valid will applies the law in effect on the date of the
maker’s death. 2 In this case, this is not a retroactive
application of Code § 64.1-49.1.
2
While this case concerns whether the writing offered for
probate actually is a valid will, "[w]e construe the language
in a will as if the testator executed it immediately before
death unless the will shows a contrary intent." McGehee v.
Edwards, 268 Va. 15, 19, 597 S.E.2d 99, 102 (2004) (emphasis
added) (citing Code § 64.1-62; Yancey v. Scales, 244 Va. 300,
4
Accordingly, the circuit court erred in sustaining the
siblings’ demurrer and dismissing the petition. We will
therefore reverse the judgment and remand for further
proceedings to determine whether David can adduce sufficient
evidence to establish that the Writing constitutes a valid will
under the law in effect at the time of Schilling’s death.
Reversed and remanded.
303, 421 S.E.2d 195, 196 (1992); Wildberger v. Cheek, 94 Va.
517, 520, 27 S.E. 441, 442 (1897)).
5