In re Will of Allen

• Court: North Carolina Supreme Court
• Writing for the Court: NEWBY, Justice.
• Citation: In re Will of Allen, 371 N.C. 665, 821 S.E.2d 396 (N.C. 2018)
• Decision Date: 07 December 2018
• Docket Number: No. 227PA17,227PA17
• Parties: In the MATTER OF the WILL OF James Paul ALLEN, Deceased

371 N.C. 665

821 S.E.2d 396

In the MATTER OF the WILL OF James Paul ALLEN, Deceased

No. 227PA17

Supreme Court of North Carolina.

Filed December 7, 2018

Ward and Smith, P.A., Winterville, by John M. Martin ; and Ranee Singleton, Washington, for propounder-appellant Melvin Ray Woolard.

Lanier, King & Paysour, PLLC, Greenville, by Jeremy Clayton King and Steven F. Johnson II, for caveator-appellees Hope Robinson and Christian Robinson.

NEWBY, Justice.

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.

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 notation¹ was added to the will within the text of Article IV (pages 5 through 6 of the will):

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. ––––, 801 S.E.2d 380, 385 (2017). Relying on In re Will of Goodman , 229 N.C. 444, 50 S.E.2d 34 (1948), and In re Will of Smith , 218 N.C. 161, 10 S.E.2d 676 (1940), the court reasoned that, "where the meaning or effect of holographic notes on a will requires reference to another part of the will, the holographic notations are not a valid holographic codicil to the will." Id. at ––––, 801 S.E.2d at 384. Moreover, the court noted that, "[i]n addition to the requirement discussed above, a codicil, whether typewritten or handwritten, must establish a present testamentary intention of the decedent, and not merely a plan for a possible future alteration to the decedent's will." Id. at ––––, 801 S.E.2d at 385. Because the court found it "necessary to incorporate or refer to the contents of ‘Article IV’ to which the note refers" to understand the handwritten notation and determined that the provision "begin[n]ing 7-7-03" could have been an intent to make a future change to the will, it concluded that the handwritten notation is not a valid holographic codicil to the will. Id. at ––––, 801 S.E.2d at 385. Thus, the Court of Appeals held the trial court erred in granting summary judgment for Woolard and directed the trial court to grant summary judgment for the Robinsons, the caveators. Id. at ––––, 801 S.E.2d at 385-86. This Court allowed discretionary review. In re Will of Allen , 370 N.C. 693, 811 S.E.2d 158 (2018).

"This Court reviews appeals from summary judgment de novo." Ussery v. Branch Banking & Trust Co. , 368 N.C. 325, 334-35, 777 S.E.2d 272, 278 (2015) (citation omitted). A trial court may grant summary judgment if, when viewed in a light most favorable to the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c) (2017). Thus, "[t]he movant is entitled to summary judgment ... when only a question of law arises based on undisputed facts." Ussery , 368 N.C. at 334, 777 S.E.2d at 278 (citation omitted). "A genuine issue of material fact ‘is one that can be maintained by substantial evidence.’ " Id. at 335, 777 S.E.2d at 278 (quoting Dobson v. Harris , 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) ). " ‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’ and means ‘more than a scintilla or a permissible inference.’ " Id. at 335, 777 S.E.2d at 278-79 (quoting Thompson v. Wake Cty. Bd. of Educ. , 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) ).

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 , 251 N.C. 439, 443, 111 S.E.2d 627, 630 (1959) (quoting Wachovia Bank & Tr. v. Schneider , 235 N.C. 446, 451, 70 S.E.2d 578, 581 (1952) ). Thus, the initial question is whether the language of the codicil can be understood to express testamentary intent. If so, the question for the trial court when considering a motion for summary judgment in a will caveat proceeding is whether that court can determine the testator's intent as a matter of law or whether there is enough uncertainty about testamentary intent to present the issue as a jury question. See generally In re Will of McCauley , 356 N.C. 91, 100-01, 565 S.E.2d 88, 94-95 (2002) (noting that where conflicting evidence exists, summary judgment is inappropriate). "[I]f there is any question as to the weight of evidence[,] summary judgment should be denied." In re Will of Jones , 362 N.C. 569, 573-74, 669 S.E.2d 572, 576-77 (2008) (quoting Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP , 350 N.C. 214, 220, 513 S.E.2d 320, 325 (1999) ).

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 ...." Id. § 31-3.4(a) (2017). "A written will, or any part thereof, may be revoked only ... [b]y a subsequent written will or codicil or other revocatory writing executed in the manner provided ... for the execution of written wills ...." Id. § 31-5.1(1) (2017).

"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 , 218 N.C. 193, 197, 10 S.E.2d 659, 661 (1940) (citation omitted). "[T]he mere making of a codicil gives rise to the inference of a change in the testator's intention, importing some addition, explanation, or alteration of a...