Virginia Supreme Court Affirms Decision Relying On Parol Evidence To Interpret Will

In the May 2020 opinion of Larsen v. Stack, the Virginia Supreme Court used the principles of will interpretation to interpret an ambiguous will using parol evidence.

The Facts of Larsen v. Stack

Erik Larsen died in April 2017.  Erik’s will divided his estate between his surviving spouse, Sandra, his children, Pamela and Kirk, and his grandchildren.

Article Fifth

Article Fifth of Erik’s will addressed Erik’s house and farm and stated:

FIFTH: I devise the following described property to my children, namely, Pamela Larsen Stack and Kirk Larsen, subject to my wife, Sandra Flora Larsen, having the right to reside in our home located at 394 Mystic Lane, Wirtz, Virginia, 24184, for so long as she is physically and mentally able to do so, and for my wife, Sandra Flora Larsen to receive the monthly rental payments, as provided for in the PCS Site Agreement (Cell Tower), dated April 16, 2013, for as long as she resides in our home, it being all that certain tract or parcel of land (Tax Parcel #28-90) containing 101.39 acres, more or less, situated, lying, and being in the Gills Creek Magisterial District, Franklin County, Virginia, it being the same property conveyed to Erik Larsen, from James C. Ellis, by Deed dated February 7, 1972, said deed being of record in the Clerk's Office of the Circuit Court of Franklin County, Virginia, in Deed Book 277, at page 38.

Article Sixth

Article Sixth addressed other real property owned by Erik and stated:

SIXTH: I hereby give to my wife, Sandra Flora Larsen, a life estate in my property located at 5414 Quail Ridge Court, Roanoke, Virginia 24018, . . . [w]ith the remainder interest to my children, Pamela Larsen Stack and Kirk Larsen.

Pamela and Kirk filed a declaratory judgment action requesting that the court construe Erik’s will to determine the extent of Sandra’s interest in Erik’s house and farm.  Pamela and Kirk argued that the will gave Sandra a limited right to live in Erik’s house “for so long as she is physically and mentally able to do so,” rather than a life estate in the entire property.

The Circuit Court Determined That The Will Was Ambiguous

At hearing, the Virginia circuit court determined that Erik’s will did not clearly establish the scope of Sandra’s interest in the home and farm, and permitted parol evidence to interpret the will.  The drafting attorney testified that:

• Erik intended for Sandra to be able to stay on the property and receive money from the cell phone tower, but wanted his children to end up with the property.
• Erik did not give Sandra a life estate because he was concerned that she would be required to sell such an interest before she could obtain Medicaid coverage.
• In the event that Sandra had to go into a nursing home or something like that, then her interest would dissolve and the property would go to the children.

The circuit court determined that Sandra did not have a life estate in the property, and only had the right to reside on the property “for so long as she is physically and mentally able to do”:

The order explained that Erik's will gave Sandra a right to "reside" on the property rather than a life estate. Quoting the Sixth Edition of Black's Law Dictionary, the order noted that the term "reside" means "'to live, dwell, abide, stay and remain upon.'" The order then clarified that Sandra's right to reside on the property included the right to access and enjoy the entire farm. The order also acknowledged that Erik's will gave Pamela and Kirk rights concerning the property. The order explained that the property rights of Pamela and Kirk were "limited only to the extent that they interfere[d] with [Sandra's] ability to live on the property by herself."

Sandra appealed the Virginia circuit court’s order.

How Do You Interpret A Will Under Virginia Law?

The court’s analysis began with a review of the established principles of will interpretation under Virginia law. First, the “cardinal principle” of will construction is that the intention of the testator controls. To ascertain the intent of the testator:

"We must determine the intention of the testator from the language which he has used, and if the meaning of that language is plain, the will must be given effect accordingly." Id. at 317. "To ascertain a testator's intention 'the whole will must be examined' and 'effect should be given to all [its] parts . . . , as far as possible.'" Id. (quoting Haag v. Stickley, 239 Va. 298, 302, 389 S.E.2d 691, 6 Va. Law Rep. 1498 (1990)).

Finally, “extrinsic evidence may be considered only if the language of the will is ambiguous, that is, susceptible to more than one interpretation.”

What Is A Life Estate Under Virginia Law?

A life estate “is an estate held only for the duration of a specified person’s life, usu[ally] the possessor’s.”  A life tenant has the right of possession and full enjoyment of the property during his estate therein. The surviving spouse’s first complaint of error was that Erik’s will left her a life estate.  The drafting attorney testified that Erik did not intend to leave Sandra a life estate.  Rather, the fifth article of the will devised the property to Pamela and Kirk in fee simple subject to Sandra’s right to reside in the home until she was physically and mentally unable to do so.  The court noted that article sixth explicitly gave Sandra a life estate in the other real property owned by Erik.  Given Erik’s use of the term in article sixth, he likely would have used the term “life estate” in article fifth if he intended to give Sandra a life estate.  The Virginia court used one provision of the will to help interpret another - a common tool of will interpretation. Also, the language in article fifth to receive monthly rental payments earned from the cell tower located on the property “for so long as she resides” in the home, would have been unnecessary if Sandra had a life estate, because Sandra would have been entitled to the payments as the life tenant.

Did The Right To Reside On The Property Give The Surviving Spouse The Right To Exclusive Use?

Sandra argued that the circuit court erred when it construed the term “reside” in a manner to allow Pamela and Kirk to access and use the property during Sandra’s residency.  However, Erik’s will did not give Sandra the exclusive right to use the property.  Pamela and Kirk had concurrent property rights, and could use the property in any manner that did not interfere with Sandra’s rights.

When Is Parol Evidence Permitted To Interpret A Will Under Virginia Law?

Parol evidence may be considered under Virginia law when the language of a will is ambiguous.  In such cases, "[p]arol evidence is admissible to enable the court to identify the property intended to be given by will, or to assist it in determining the quantum of interest which is to pass by the will." Erik’s will was ambiguous because it did not define the scope of Sandra’s right to reside on the property, and regarding the limitation that it placed on Sandra’s rights regarding living on the property. This Virginia Supreme Court case is a reminder that when a will is ambiguous, the court will look to other provisions of the will for guidance on how to interpret an ambiguous provision.  The ultimate goal is to honor the testator's intent.