Spring 2009 Newsletter
Removing the Limitations on Devisavit Vel Non Actions: A Quest for Wiggle Room under a Circuit Court's Limited Probate Jurisdiction
By: Richard C. Ferris, II, Esq. and Steven J. McKinney, Esq.
In Virginia, a legal proceeding brought to challenge the validity of a will is known by the Latin term“devisavit vel non.”1 Practitioners familiar with devisavit vel non proceedings are well-aware that along history of common law tradition attaches to this cumbersome Latin phrase and imposes a strict limitation on the jurisdiction of any trial court in which such a claim is brought.
This jurisdictional limitation was succinctly summarized by the Virginia Supreme Court in its 1938 decision of Potts v. Flippen,2 wherein the Court noted that “for more than one hundred years it has been settled law in this State” that, in a proceeding to test the validity of a will, “the jurisdiction of the court is limited to try the single issue, devisavit vel non, and when that issue has been duly determined, the jurisdiction of the court in such suit is ended.”3 Thus, the law in this area appeared to create a legal inconvenience, requiring a practitioner first to file a proceeding to test the validity of a will, but subsequently, limiting the jurisdiction of the trial court to deciding that single issue, rather than continue to grant any consequential relief required.
Such restrictions on jurisdiction are clearly inefficient, and, as this article will explain, might soon be entirely eliminated.
The Commonwealth of Virginia is known as a jurisdiction firmly established in the common law, and therefore, reticent to leave behind old frameworks and traditions. In the last few years, however, Virginia has begun a shift toward efficiency prevailing over tradition, as exemplified by the streamlining of the judicial process through the merger of the courts of law and equity in January of 2006.
This tide of change has reached beyond mere judicial structure and nomenclature, to include changes to laws governing Trusts and Estates, as exemplified by the General Assembly’s enactment of a version of the Uniform Probate Code’s “Harmless Error” statute,4 which took effect July 1, 2007.5 As the trend toward expediency continues, more changes are bound to take effect.
This short article will briefly discuss possible changes to the traditionally limited jurisdiction of a probate court in a devisavit vel non proceeding, explaining why Circuit Courts may now be permitted to provide plenary relief, rather than simply adjudicate the validity of the challenged will.
I. HEATH V. RILEY— CHALLENGING OUT-MODED RESTRICTIONS
Every tide of change leaves in its wake an assortment of questions about the state of the law, and provides legal practitioners with the opportunity to test the boundaries of old legal traditions. One such opportunity arose in the case of Heath v. Riley,6 a devisavit vel non proceeding in the City of Richmond Circuit Court, which was subsequently petitioned for appeal before the Supreme Court of Virginia.
What is significant in Heath is that the relief awarded in the Final Order of the Circuit Court, coupled with the Supreme Court’s decision to not grant an appeal,7 squarely brings into question the continued limitation on probate jurisdiction that has been apart of Virginia legal tradition for well over a hundred and fifty years.8
Heath v. Riley began in the same manner as many other devisavit vel non actions, as a simple challenge to the validity of a will that had been entered into probate, with the outcome contingent on the plaintiff’s claim that the will had never been signed by the decedent. The Circuit Court, upon review of the evidence, agreed with the plaintiff and invalidated the will because it had not been executed in an unequivocal manner.
The significance of the case, in terms of a possible change in the law, emerged after the Court made these factual findings, and then, concurrently in its Final Order, restored the status quo ante of the estate’s personal property and monies by ordering the purported beneficiary/executor to return the estate’s property to the rightful heir of decedent’s family.
On petition for appeal, in addition to challenging the Circuit Court’s findings of fact, the appellant challenged the Circuit Court’s authority to restore the status quo within the confines of a devisavit vel non proceeding, since the Plaintiff had brought the action as a separate suit to impeach the will.
II. ARGUMENTS TO THE SUPREME COURT
The law appeared to be squarely against the Appellee on the issue of the Circuit Court’s jurisdiction. In the Brief in Opposition to Appellant’s Petition for Appeal, the Appellee had no choice but to recognize the adverse controlling authority of the Virginia Supreme Court’s previous rulings.9 The Appellee specifically recognized and conceded the adverse controlling case law, which dictates that courts exercising “their probate jurisdiction, are‘strictly and severely limited . . . to deciding the question whether or not the paper was the will of the decedent.’”10 In fact, this limitation can be traced all the way back to 1844, when, in the case of Coalter v. Bryan, the Supreme Court held that “[t]he jurisdiction of a court of probate does not extend to the ascertainment and enforcement of rights of property, but only to establish, preserve and perpetuate an important muniment of title.”11
Since the law appeared unambiguous and well-established, the Appellee’s only option resided in presenting “a good faith argument for a . . . modification or reversal of existing law.”12
Therefore, with no other alternative, the Appellee argued that the Supreme Court should overturn out-dated precedent which denies a circuit court the power to grant full relief after a ruling on the validity of a will, because such limitations were instituted before the merger of law and equity, are not required by statute, result in inefficient judicial administration, and deny litigants plenary relief when justified.
A. Outdated Precedent
Appellee sought to use the controlling case law to his advantage by noting the ancient nature of the limitation, which Virginia had adopted at least as far back as 1844, in Coalter v. Bryan. Appellee’s arguments proceeded as follows:
The Virginia Supreme Court’s holdings that limit the exercise of jurisdiction in probate matters were birthed out of a line of reasoning that depends on the divided judicial system that distinguished between courts or law and equity, a system no longer in effect in Virginia.
In Potts v. Flippen,13 the Supreme Court acknowledged that “for more that one hundred years” it had been the law in Virginia that when a bill was filed to challenge the validity of a probate, “the jurisdiction of the court is limited to try the single issue, devisavit vel non, and when that issue has been duly determined, the jurisdiction of the court in such suit is ended.”14 The Potts Court then quoted Coalter v. Bryan, to explain the reasoning behind the rule as follows:
The most that can be said in behalf of the ulterior relief sought by the plaintiffs is, that the court of chancery having obtained jurisdiction of the subject, for the purpose of deciding upon the validity of the instrument, it ought to go on to administer complete justice between the parties, instead of turning them round to another action. . . . But this is founded upon the supposition, that the court of chancery has obtained jurisdiction of the subject as a court of equity. Such, however, is not the fact: its jurisdiction is merely that of a court of probate; and to be exercised not by the court, but by a jury under its supervision; and for the decision of a common law issue . . . .15
Thus, the rationale of the Coalter Court demonstrates that the devisavit vel non limitation was implemented to prevent courts of equity from usurping the jurisdiction of courts of law.
Later rulings by the Supreme Court further exemplify the outmoded rationale behind the limitation. In Queensbury v. Vial,16 the Supreme Court held that“[c]ourts of equity have no inherent jurisdiction to set aside wills on the ground of fraud, undue influence, or lack of testamentary capacity on the part of the testator,” but that such questions were rather reserved for the “circuit court of the county.”17 Similarly, in Kirby v. Kirby,18 the Supreme Court recognized the limitation upon an issue of devisavit vel non was due to the fact that in such suits “a court of equity does not proceed under its general jurisdiction.”19
The Virginia Supreme Court’s numerous rulings explaining the jurisdictional limitations of devisavit vel non proceeds relied extensively on the concept of a legal system in which the courts of law and equity were strictly divided. Consequently, the well-established prior case law provided ample ammunition for Appellee to attack the common law limitation on the relief to be granted in certain probate proceedings as being based on an outmoded rationale that the courts of law and equity must remain separate.
B. Merger of Law and Equity
Black’s Law defines devisavit vel non as “[a]n issue directed from the chancery court to a court of law to determine the validity of a will that has been contested, as by an allegation of fraud or testamentary incapacity.”20 The definition itself, by distinguishing between the chancery court and the court of law, shows that the very foundation of the doctrine limiting jurisdiction embeds the obsolete separation between the courts of law and equity.
Virginia’s recent reformation of its judicial structure to merge the courts of law and equity was meant to increase the efficiency of the court system and eliminate artificial distinctions between courts of law and equity that limited the jurisdiction of the courts. In the Commonwealth of today, Circuit Courts are courts of general jurisdiction with extremely broad powers and authority to grant either legal or equitable relief.21 The common law in effect before the merger of law and equity, which limited the jurisdiction of a court of probate, purported to maintain the distinction between law and equity.22 The common law in this area has, therefore, become obsolete.
C. Not Required by Statute
The limitations placed upon Circuit Courts by the old common law are not statutorily required, and accordingly, are subject to modification by the Supreme Court. Virginia Code Sections 64.1-78 and 64.1-88, the statutory provisions which authorize a probate challenge, do not expressly limit the jurisdiction of the court in challenging the probate of a will.23
In fact, the strong limitation that has been historically placed on the trial courts regarding appeals from the order of a clerk appears to conflict with the statutory mandate. The statute provides that “the court . . .may make any such order for the protection of the parties interested or for the protection or preservation of any property involved as might have been made had the matter been originally presented to the court, or as may seem needful.”24
Such a broad grant of authority appears more inline with the actions taken by the Circuit Court in Heath v. Riley than does the old common law, which“strictly and severely limited” a court’s power to merely deciding whether the will was properly admitted to probate.
D. Results in Inefficient Judicial Administration
The Apellees final argument to the Supreme Court focused on efficiency, relying on the merger of law and equity as a call to reformation. The limitation on relief that flows from Coalter v. Bryan and its progeny is arcane, no longer supported by sound reasoning, and not statutorily required.
The limitation stretches as far back as Coalter’s 1844 ruling and should yield to Virginia’s current reform granting courts merged jurisdiction over law and equity. The case law, as it now stands, wastes valuable resources because its restrictions prevent a court from granting full relief. It is judicially inefficient to limit the relief a circuit court may grant as it requires an entire separate proceeding be filed to later obtain such relief.
In the same manner in which Virginia has merged the courts of law and equity to avoid uneconomic judicial administration and artificial distinctions, the Supreme Court should likewise no longer apply old common law that severely limits the relief a Circuit Court may grant in devisavit vel non actions.
The reasons for eliminating the jurisdictional limitation on courts conducting devisavit vel non hearings appear both numerous and sound. However, because legal precedent unequivocally prohibited the granting of plenary relief employed by the Circuit Court in Heath v. Riley, one would expect either of two likely outcomes from the Appellant’s filing of a Petition for Appeal to the Virginia Supreme Court: 1 ) the Court might grant the petition in order to remand the case to the Circuit Court to comply with the well-established jurisdictional limitations; or, 2) the Court might grant the petition in order to determine whether precedent should be overturned and the jurisdictional limitation eliminated altogether.
Here, the Supreme Court did neither, and instead declined review despite the fact that both the Appellant and the Appellee agreed (the latter conceding the point, due to ethical obligation), that well-established precedent prohibited the Circuit Court’s grant of plenary relief at the conclusion of the devisavit vel non proceeding.
The result of Heath v. Riley perhaps creates a sort of impasse, or perhaps not.
The Virginia Supreme Court did not overrule prior case law strictly limiting the jurisdiction of a trial court in a devisavit vel non proceeding. Therefore, the 1844 Coalter v. Bryan holding that “[t]he jurisdiction of a court of probate does not extend to the ascertainment and enforcement of rights of property, but only to establish, preserve and perpetuate an important muniment of title,” cannot be disregarded as inapplicable.
Conversely, at least in the case of Heath v. Riley, the Supreme Court was unwilling to enforce its prior case law, and allowed the Circuit Court’s ascertainment and enforcement of rights of property to stand. Specifically, the Supreme Court indicated that,“pon review of the record in this case and consideration of the argument submitted in support of and in opposition to the granting of an appeal, the Court is of the opinion there is no reversible error in the judgment complained of.”25
Case law that is not enforced is, for the practical purposes of the parties and practitioners, as good as overturned, since the outcome is the same.
In the wake of the merger of the courts of law and equity in Virginia, it is only a matter of time before the jurisdictional limitations on devisavit vel non will be tested again.
The case of Heath v. Riley does not provide us with a clear understanding of where the law is going. However, it does provide a clear example of how the jurisdictional limitation may be challenged; cast doubt on the Supreme Court’s willingness to enforce the prior case law, and explain numerous reasons why jurisdictional limitations should be overruled.
A true removal of the limitations on devisavit vel non actions has been reserved for another day. For now, the practitioner has only the Supreme Court’s slight nod to push the envelope a little further.
Richard C. Ferris, II, Esq. clerked for the Honorable William R. Shelton of the 12th Judicial Circuit after graduating from Regent University School of Law in 1993. In addition to serving as a Judge Pro Tempore, Commissioner in Chancery, Special Commissioner, and Receiver, Mr. Ferris also serves as an Adjunct Professor of Law at Regent University School of Law, where he has taught Wills, Trusts, and Estates.
Steven J. McKinney, Esq. is a 2008 magna cum laude graduate of Regent University School of Law. He also graduated summa cum laude from Elmira College in 2005 with Bachelor Degrees in Political Science, International Studies, and Speech Communications.
1The term “devisavit vel non” comes from the Latin for “he (or she) devises or not” and is defined as “[a]n issue directed from a chancery court to a court of law to determine the validity of a will that has been contested, as by an allegation of fraud or testamentary incapacity.” BLACK’S LAW DICTIONARY 463 (7th ed. 1999).
2Potts v. Flippen, 171 Va. 52 (1938).
3Id. at 59.
4U.P.C. § 2-503.
5Virginia Code § 64.1-49.1.
6Heath v. Riley (Spencer, J.) No. 07-5536, May 23, 2008; City of Richmond Circuit Court.
7Heath v. Riley, No. 081511 (Va. Sup. Ct. Oct. 31, 2008) (the Court refused the petition for appeal).
8The issues on appeal brought into question precedent contained in Coalter v. Bryan, 42 Va. (1 Grat.) 18, 77 (1844).
9See e.g. Virginia Rule of Professional Conduct 3.3(a) (2008-2009).
10Smith v. Mustian, 217 Va. 980, 985 (1977).
11Id.(citing Coalter, 42 Va. (1 Grat.) at 77.
12Virginia Rules of Professional Conduct, Rule 3.1 (2008-2009).
13171 Va. 52, 59 (1938).
15Id. (quoting Coalter v. Bryan, 1 Gratt. 18, (42 Va. 18).
16123 Va. 219, 221-22 (1954).
185 S.E. 539 (1888).
19Id. at 539-40.
20BLACK’S LAW DICTIONARY 463 (7thed. 1999).
21Va. Code § 17.1-513.
22See Branch v. Branch, 172 Va. 413 (1939) (a court in equity had only such jurisdiction as conferred by statute).
23See V.A. Code § 64.1-78 (providing procedure under which to challenge an order of the clerk admitting a will to probate). See also, V.A. Code § 64.1-88 (providing procedure for a bill in equity to impeach or establish the will).
24Va. Code §64.1-78 (emphasis added).
25Heath v. Riley, No. 081511 (Va. Sup. Ct. Oct. 31, 2008).