In re Will of Allen
In re Will of Allen
Opinion
*398 **665 This case presents the question of whether a handwritten codicil that references a provision of a self-proving will is valid. The intent of the testator controls, and the language of the codicil must inform as to that intent. In this case the self-proving will and holographic codicil together clearly evince testamentary intent by simply referencing the applicable portion of the will to amend. Nonetheless, a genuine issue of material fact exists whether the phrase "begin[n]ing 7-7-03" shows the testator's then-present testamentary intent. Accordingly, this issue is not appropriate for summary judgment but instead presents a question of fact for the jury to resolve. As such, we reverse the decision of the Court of Appeals and remand this case to that court for further remand to the trial court to continue with the proceedings.
**666 On 29 August 2002, the testator, James Paul Allen, executed a typewritten will, drafted by his attorney, that constituted a properly attested self-proving will according to the requirements of North Carolina General Statutes section 31-3.3 (hereinafter "the will"). N.C.G.S. § 31-3.3 (2017). The will included the following relevant dispositions:
ARTICLE III
I will, devise and bequeath all of my real and personal property of every sort, kind and description, both tangible and intangible, wheresoever located, in fee simple absolute unto, RENA T. ROBINSON ....
ARTICLE IV
In the event, RENA T. ROBINSON, does not survive me, I will and devise a life estate unto, MELVIN RAY WOOLARD, in all real property located in Beaufort, Hyde and Washington Counties with a vested remainder therein unto, HOPE PAIYTON ROBINSON and CHRISTIAN ANN ROBINSON, in equal shares, in fee simple absolute, subject to the life estate herein devised unto MELVIN RAY WOOLARD.
ARTICLE V
In the event, RENA T. ROBINSON, does not survive me, I will and bequeath, all remaining real and personal property both tangible and intangible, wheresoever located, to include all farming equipment unto my nephew, MELVIN RAY WOOLARD, in fee simple.
Thus, according to the will, Rena T. Robinson, with whom the testator had a relationship, received the testator's real and personal property in fee simple absolute should she survive him. If she did not, the testator's nephew, Melvin Ray Woolard (Woolard), would receive "all remaining real and personal property both tangible and intangible, wheresoever located." Woolard would likewise receive a life estate "in all real property located in Beaufort, Hyde and Washington Counties" subject to "a vested remainder therein [to] Hope Paiyton Robinson and Christian Ann Robinson" (the Robinsons), the granddaughters of Ms. Robinson.
Sometime after the will's execution, the following handwritten notation 1 was added to the will within the text of Article IV (pages 5 through 6 of the will):
*399 **667 ARTICLE IV
In the event, RENA T. ROBINSON, does not survive me, I will and devise a life estate unto, MELVIN RAY WOOLARD, in all
BEGINING 7-7-03 DO NOT HONOR ARTICLE IV VOID ARTICLE IV
real property located in Beaufort, Hyde and Washington Counties with a vested remainder therein unto, HOPE PAIYTON ROBINSON and CHRISTIAN ANN ROBINSON, in equal shares, in fee simple absolute, subject to the life estate herein devised unto MELVIN RAY WOOLARD.
Given that the will included no provision benefitting the Robinsons other than Article IV, that notation, if a valid codicil, modifies the will and disinherits the Robinsons in favor of Woolard.
Ms. Robinson died on 5 July 2012, and the testator died on 8 March 2014. On 13 March 2014, Woolard filed an affidavit for probate of the will with the codicil. The testator's niece averred that she found the will among the testator's valuable papers or effects, and two others averred that the codicil matched the testator's handwriting. On 1 October 2015, the Robinsons contested the will, asserting that the handwritten notes did not constitute a holographic codicil to the will. On 10 March 2016, the Clerk of Court transferred the matter to Superior Court, Beaufort County, which granted summary judgment in favor of Woolard and ordered the Clerk of Superior Court to probate the will as modified by the codicil. The Robinsons appealed, arguing that the trial court erred by ruling that the handwritten note disinheriting the Robinsons constituted a valid holographic codicil to the will.
On appeal the Court of Appeals held that, even if the testator handwrote the notation in the margin of the 29 August 2002 will, that notation did not meet the requirements for a valid holographic codicil to the will.
In re Will of Allen
, --- N.C. App. ----,
"This Court reviews appeals from summary judgment de novo."
Ussery v. Branch Banking & Trust Co.
,
Regarding wills and codicils, above all, "[t]he discovery of the intent of the testator as expressed in his will is the dominant and controlling objective of testamentary construction, for the intent of the testator[,] as so expressed[,] is his will."
Moore v. Langston
,
A decedent may direct the distribution of his estate upon his death by executing a will.
See
N.C.G.S. § 31-3.2 (2017). "A holographic will is a will ... (1) [w]ritten entirely in the handwriting of the testator ... (2) [s]ubscribed by the testator ... and (3) [f]ound after the testator's death among the testator's valuable papers or effects ...."
"A codicil is a supplement to a will, annexed for the purpose of expressing the testator's after-thought or amended intention."
Smith v. Mears
,
Whether will or codicil, "[t]he maker [of the instrument] must intend at the time of making that the paper itself operate as a will, or codicil; an intent to make some future testamentary disposition is not sufficient."
In re Will of Mucci
,
Given the nature of a codicil as "an addition, explanation, or alteration of a prior will," a codicil by definition modifies a prior will.
Armstrong
, 235 N.C. at 735,
Though a holographic codicil by its name implies that all words must be entirely in the testator's handwriting, any typed words appearing on the paper "would not necessarily prevent the probate of a will" if those typed words are "not essential to the meaning of the words in such handwriting."
Id. at 446,
The rules applicable to will construction exist to help discern testamentary intent, which is the paramount consideration in evaluating testamentary devises.
See
In re Will of Bennett
,
Here the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicates that the will, including the handwritten provisions, was found among the testator's valuable papers and effects. 2
*402 Moreover, the handwritten notation itself, "DO NOT HONOR ARTICLE IV VOID ARTICLE IV," evinces a clear intent regarding the desired disposition for the items contained in Article IV. Those words themselves explicitly show that the will should be modified to eliminate Article IV. Contrary to the Court of Appeals' conclusion, the testator did not need to rewrite all of Article IV for the handwritten notation to be sufficient.
Given that the language is sufficient to indicate testamentary intent to void Article IV of the will, the remaining question becomes whether the phrase "begin[n]ing 7-7-03" sufficiently indicates
present
testamentary intent. Had the testator simply written the date, no ambiguity would exist. The term "beginning," however, is sufficiently ambiguous to create a genuine issue of material fact sufficient to preclude summary judgment as to whether that provision indicates the required present testamentary intent.
See
In re Johnson
,
Thus, while the will and the codicil together clearly evince testamentary intent by simply referencing the applicable portion of the will to amend, a genuine issue of material fact exists whether the phrase "begin[n]ing 7-7-03" indicates present testamentary intent. Therefore, summary judgment is inappropriate here because the issue presents a question of fact properly resolved by the jury. As such, we reverse the decision of the Court of Appeals, and remand this case to the Court of Appeals for further remand to the trial court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
This opinion references the handwritten notation as "the codicil" based on the term's definition in Black's Law Dictionary , which includes that, "[w]hen admitted to probate, the codicil becomes a part of the will." Codicil , Black's Law Dictionary (10th ed. 2014).
As previously noted, a holographic codicil must be entirely in the testator's handwriting. N.C.G.S. § 31-3.4(a)(1). The trial court granted summary judgment in favor of the propounder, concluding no genuine issue of material fact existed regarding whether the testator handwrote every portion of the codicil. Though the parties advanced arguments at the Court of Appeals about whether the provision was entirely in the testator's handwriting, the Court of Appeals did not reach that issue because it reversed the trial court's ruling and remanded for entry of summary judgment for the caveators.
In re Allen
, --- N.C. App. at ----,
Reference
- Full Case Name
- In the MATTER OF the WILL OF James Paul ALLEN, Deceased
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- Whether a holographic codicil later added to a page of a properly attested, typewritten will met statutory and case law requirements to be valid whether the Court of Appeals erred in reversing the trial court's grant of summary judgment for the propounder and remanding for entry of summary judgment in favor of the caveators.