Dye v. Cnty. Comm'n of Marion Cnty.

• Citation: 865 S.E.2d 52,245 W.Va. 650
• Decision Date: 28 October 2021
• Docket Number: No. 20-0602,20-0602
• Parties: Homer DYE, Plaintiff Below, Petitioner v. COUNTY COMMISSION OF MARION COUNTY, Defendant Below, Respondent
• Court: Supreme Court of West Virginia

245 W.Va. 650

865 S.E.2d 52

Homer DYE, Plaintiff Below, Petitioner

v.COUNTY COMMISSION OF MARION COUNTY, Defendant Below, Respondent

No. 20-0602

Supreme Court of Appeals of West Virginia.

Submitted: September 28, 2021

Filed: October 28, 2021

Richard R. Marsh, Esq., Flaherty Sensabaugh Bonasso PLLC, Clarksburg, West Virginia, Counsel for Petitioner

Charles A. Shields, Esq., Assistant Prosecutor, Marion County Prosecuting, Attorney's Office, Fairmont, West Virginia, Counsel for Respondent

WOOTON, Justice:

The petitioner, Homer Dye, appeals the July 1, 2020, order entered by the Circuit Court of Marion County, West Virginia, denying his appeal from an order entered by the respondent Marion County Commission ("county commission"), declaring the holographic Will of Oras Dye ("the Will") to be void and rescinding the petitioner's appointment as Executor of the Estate of Oras Dye. On appeal, the petitioner raises a single assignment of error, which contains several issues.¹ We find it necessary to only address: 1) whether the fiduciary supervisor and the county commission lacked statutory authority to investigate the validity of a Will, and unilaterally declare it to be void, after said Will had been admitted to probate; and 2) whether the county commission failed to provide the petitioner with notice and an opportunity to be heard, before taking the action cited above in voiding the Will,² violated the petitioner's right to due process of law. After careful review of the briefs, the arguments of the parties, the appendix record, and the applicable legal authority, we find that the fiduciary supervisor lacked authority to investigate the validity of a Will already admitted to probate, and that the county commission lacked authority to revoke a Will's prior admission to probate. We therefore reverse the circuit court's order and remand the case for entry of an order declaring that the Will of Oras Dye was admitted to probate as a valid will on February 4, 2016, and reinstating the petitioner as the executor of the decedent's estate.

I. Facts and Procedural Background

On December 15, 2013, a holographic Will was signed by Oras Dye, the petitioner's brother. A little over two years later, Oras died on December 25, 2015; on January 6, 2016, the petitioner took the Will to the Office of the Clerk of the County Commission of Marion County ("county clerk") to present it for probate. The county clerk did not accept the Will for probate at that time but allowed it to be lodged for review. On January 21, 2016, Cynthia A. Danley, Deputy Supervisor of the Office of the Fiduciary Supervisors, wrote to the petitioner, explaining that in the opinion of the Fiduciary Supervisor, David Glance ("the fiduciary supervisor"), the Will could not be proven because it was not signed by two disinterested witnesses.³ Ms. Danley advised the petitioner that the decedent's children (also referred to as the "heirs at law") had "indicated that one of them wishes to be appointed as Administrator of the Estate." Ms. Danley gave the petitioner seven days to consult with an attorney, and advised that if she did not hear from him within that time frame, one of the heirs at law would be appointed as administrator of the estate.

On January 26, 2016, after receiving the letter, the petitioner went to the fiduciary supervisor's office. While it is unclear from the appendix record whether the petitioner met with the fiduciary supervisor, the county clerk, or an employee in one of these offices, someone explained to him the requirements to probate the hand printed Will as a holographic Will under West Virginia law.⁴ He was provided with two standard form affidavits entitled "Proof of Holographic Will," for two witnesses to execute concerning the verification of the decedent's handwriting.⁵

The petitioner had the two affidavits signed and notarized for attachment to the Will that was lodged in the county clerk's office. In the two affidavits, Alicia Healey and Yvonne Shaw, respectively, each swore that they knew the decedent and had seen him write frequently within the time period each affiant knew him and

had been acquainted with his genuine proper handwriting for a number of years, and ... [was] acquainted with and do know his handwriting and would and do know it when ... [each affiant saw] it, and that the handwriting of said will of Oras D. Dye is the own genuine proper handwriting of said Oras D. Dye.

The petitioner then provided the completed affidavits to the county clerk. On February 4, 2016, the Will, with the accompanying affidavits, was admitted to probate and recorded by the county clerk's office, in vacation, as a holographic Will.

After admitting the Will to probate and recording it, the fiduciary supervisor, acting unilaterally and despite the lack of any objection having been lodged by anyone, decided to undertake his own investigation of the Will. By letter dated February 23, 2016, Ms. Danley informed the petitioner that "Mr. Glance, the Fiduciary Supervisor wishes to contact the witnesses who signed the Affidavits for Proving The Holographic Will." The petitioner was asked to provide the fiduciary supervisor with the addresses of the two affiants, Alicia Healey and Yvonne Shaw. The fiduciary supervisor, in turn, sent a letter, dated March 1, 2016,⁶ to Ms. Healey and Ms. Shaw, respectively, stating:

You have recently sworn, under oath, in Affidavits concerning the handwritten Will of Oras Dye.

Before additional litigation takes place over this Will, I want to make sure of your position in this matter. The Will is printed and then signed by Oras Dye.

Is it your sworn testimony that the printed Will was ALL done by Oras Dye? Or is it your sworn testimony that the signature on the Will is that of Oras Dye and you do not know who printed the Will. This is an important difference under West Virginia law, so I need you to sign the enclosed form and return it to our office.

Both witnesses responded to this inquiry by indicating that they only intended to verify the decedent's signature on the Will.

By letter dated April 18, 2016, the petitioner's counsel informed Ms. Danley of the petitioner's position that the validity of the Will had been resolved on February 4, 2016, when the Will had been admitted to probate and the petitioner had been duly appointed as executor. Counsel further advised Ms. Danley that "it is our opinion that Oras Delmus Dye's last will and testament is entirely valid" and that the Will comported with the requirements of West Virginia Code § 41-1-3.⁷

By letter dated April 25, 2016, the fiduciary supervisor responded to the petitioner's counsel, stating that he did not believe the Will was valid. Specifically, the fiduciary supervisor stated that he had followed up with the two affiants and "their responses did not affirm their Affidavits. They can only say that the signature on the Holographic Will is that of Oras Dye, but will not confirm that the Will is ‘wholly in the handwriting of Oras Dye.’ " He further stated that he

was in the process of meeting with the Prosecutor's office to have an Order prepared for the County Commission, voiding the Will of record.

Since your client has the burden of proving the Will of record "was wholly in the handwriting of Oras Dye," I will wait twenty (20) days before taking any action.

Finally, the fiduciary supervisor stated that he was also sending a copy of everything "to the Heirs at Law of Oras Dye, and by a copy of this letter, asking them to file their written position on the Holographic Will within the next twenty (20) days." Neither the petitioner, nor any of the heirs at law responded to the fiduciary supervisor's letter.⁸

By letter dated October 5, 2016, the fiduciary supervisor provided the petitioner and the heirs at law a copy of an order entered by the county commission that same date, voiding the Will and rescinding the petitioner's appointment as Executor of the Estate of Oras Dye. This order had been entered by the county commission ex parte and without any notice to the petitioner, and the county commission's action was based solely upon the investigation conducted by the fiduciary supervisor, as there had never been any objection lodged by the "heirs at law" – or anyone else – to the Will. In its order, the county commission directed the petitioner to provide the fiduciary supervisor with a "Long Form Settlement detailing all actions taken as Executor from the date of his appointment to the date of settlement" within thirty days.

The petitioner appealed the county commission's order to the circuit court on November 2, 2016.⁹ By order entered July 1, 2020, the circuit court denied the appeal, finding that the fiduciary supervisor's actions were "open and transparent" and were "reasonable and proper under the circumstances." Further, the court found that despite notifications from the fiduciary supervisor, the petitioner failed to respond in a timely manner "for more than five (5) months" after the fiduciary supervisor's April 25, 2016, letter. The circuit court then found that "[h]owever, from April 25, 2016, to October 5, 2016, the Petitioner, Homer Dye, took action to attempt to sell the real estate of his brother Oras D. Dye, under the void will, all to the prejudice of the children of Oras D. Dye, the statutory heirs of Oras D. Dye."¹⁰ The circuit court determined that the petitioner had been given "reasonable opportunities to respond to the legal issues concerning" probate of the Will but had failed to take any action. The circuit court concluded:

Petitioner and his Counsel had timely and reasonable opportunities to avail themselves of remedies before the Fiduciary Supervisor and the Marion County Commission, which satisfies all procedural due process concerns in this particular case. Since the Petitioner and his Counsel declined to avail themselves of the legal remedies by their own conduct, this Court readily concludes Petitioner has not been deprived of Due Process of Law.

The...