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. 

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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)). 

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