
    CIRCUIT COURT OF FAIRFAX COUNTY
    In re Estate of G. Elaine Pierce
    December 30, 1998
    Case No. (Fiduciary) 60117
   By Judge F. Bruce Bach

This matter came on for a hearing on August 13,1998. After considering argument and memorandum of counsel, I find that die will of G. Elaine Pierce was revoked by the testator on July 28, 1994, and she died intestate. Accordingly, Petitioner’s request for an order admitting the April 1,1988, will to probate is denied.

I. Facts

Mrs. G. Elaine Pierce executed her will on April 1, 1988, leaving all of her property to her husband, Raymond E. Pierce, die Petitioner in this matter. On July 28, 1994, Mrs. Pierce wrote “Void” and “Elaine” across all three pages of her will. The words are written vertically in the center of each page so that they do not touch every line on every page. On die last page, near the attestation clause, she wrote:

Cancelled This Date
Thumb Print on 7-28-94
Center of Seal
I am changing to a “Living Will” This date 7-28-941 am going for a biopsy on the neck hopefully and prayerfully it is not non Hodkins Lymphoma

The will was found by Mr. Pierce among Mrs. Pierce’s personal belongings.

In November, 1997, Mr. Troy R. Martin, the decedent’s son, visited his mother. Mr. Martin testified that during this visit, his mother called him and Mr. Pierce into her room and told them both that she wanted her son to have half of the house and all of her property. Mr. Pierce testified that he remembered the event but not the exact words of the conversation. Mrs. Pierce died shortly after this conversation on November 19,1997.

Mr. Martin testified that two days after arriving in Virginia after his mother’s death, he and Mr. Pierce discussed his mother’s estate. Mr. Martin testified that at this time he and Mr. Pierce agreed to equally split Mr. and Mrs. Pierce’s property. Mr. Pierce testified that he and Mr. Martin had talked only about equally splitting Mrs. Pierce’s property.

n. Discussion

A. Will Revocation

The first issue presented is whether the decedent’s handwritten alterations constitute a total or partial revocation of the will. I find that, as a factual matter, the will has been totally revoked.

Code § 64.1-58.1 of Va. Code Ann., dealing with revocation of wills generally, provides, as pertinent: “If a testator, having an intent to revoke ... cuts, tears, bums, obliterates, cancels or destroys a will... such will... is thereby void and of no effect.”

hi the present case, the physical act of the testator writing “Void” and “Elaine” in large letters on every page of her will clearly supports an inference of cancellation. Moreover, there is the unrebutted presumption that the testator marked these pages with toe intent to revoke. Here toe will presented for probate had been in toe testator’s custody since its execution and was found among her personal effects at death with toe handwritten alterations that constitute a sufficient act of cancellation. Accordingly, a rebuttable presumption arises that such alterations were made with toe intent to revoke toe instrument. See Jessup v. Jessup, 221 Va. 61, 267 S.E.2d 115 (1980).

B. Dependent Relative Revocation

The second issue raised is whether the doctrine of dependent relative revocation applies and rebuts toe presumption that toe cancellation was done with toe intent of revoking toe will. I find that toe doctrine of dependent relative revocation inapplicable because toe testator did not intend to make her revocation conditional upon toe execution of a new will.

Dependent relative revocation can “only apply where there is a clear intent of toe testator that toe revocation of toe old will is made conditional....” 95 C.J.S., Wills, § 267 at 37. In the present case, the only evidence presented by Petitioner suggesting that die testator had any intention of making the revocation conditional upon the execution of a new will is her note, “I am changing to a ‘Living Will’.” I do not find from this language that the testator had any clear intent to make the revocation conditional.

The Court’s interpretation is supported by the testator’s November 1997 conversation with Mr. Pierce and Mr. Martin about the disposition of her estate. While die parties dispute the specifics of that conversation, it is undisputed that after her death both Mr. Pierce and Mr. Martin agreed to split the testator’s estate. Clearly, Mr. Pierce and Mr. Martin understood that the testator did not intend her April 1,1988, will to be the final statement of her testamentary will.

Accordingly, the Petitioner’s request for an order admitting the April 1, 1988, will to probate as the last will and testament of G. Elaine Pierce is denied.  