Nichols v. Baer

• Citation: 78 A.3d 344,435 Md. 324
• Decision Date: 22 October 2013
• Docket Number: No. 33,Sept. Term, 2011.,33
• Parties: Sam NICHOLS, Personal Representative of the Estate of Jesse W. Suiters v. Suzanne BAER and Nancy Burton, Personal Representatives of the Estate of Virginia Lee Suiters.
• Court: Court of Appeals of Maryland

435 Md. 324

78 A.3d 344

Sam NICHOLS, Personal Representative of the Estate of Jesse W. Suiters

v.Suzanne BAER and Nancy Burton, Personal Representatives of the Estate of Virginia Lee Suiters.

No. 33, Sept. Term, 2011.

Court of Appeals of Maryland.

Oct. 22, 2013.

Demetrios G. Kaouris (Miles & Stockbridge, P.C., Easton, MD), on brief, for petitioner.

Bruce F. Bright (Ayres, Jenkins, Gordy & Almand, P.A., Ocean City, MD; Cynthia B. MacDonald of MacDonald Law Office, LLC, Salisbury, MD), on brief, for respondents.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, BELL ^*, JOHN C. ELDRIDGE (Retired, Specially Assigned), LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

BELL, C.J. (ret.).

Md.Code (1974, 2011 Repl.Vol.) § 4–105 of the Estates & Trusts Article (“E & T”),¹ as relevant to this case, provides:

“A will, or any part of it, may not be revoked in a manner other than as provided in this section.

* * *

“(4) By an absolute divorce of a testator and his spouse or the annulment of the marriage, either of which occurs subsequent to the execution of the testator's will; and all provisions in the will relating to the spouse, and only those provisions,shall be revoked unless otherwise provided in the will or decree.”

Accurately characterized as a revocation by divorce statute, by it terms, “unless otherwise provided in the will or decree,” a divorce revokes a pre-existing will's provisions “relating to” the spouse.

There is no disagreement as to the ultimate intent of the General Assembly in enacting this statute, to effect, in the absence of a contrary intention expressed by the testator, the revocation of all provisions of a testator's will, made prior to the divorce of the testator and his or her spouse or the annulment of the marriage, relating to the testator's spouse. Friedman v. Hannan, 412 Md. 328, 345, 987 A.2d 60, 70 (2010). The issue this case presents is focused on the implementation of that intent.² We must decide what the General Assembly intended when it provided for an exception to revocation to be “provided in the will or decree,” whether the pre-existing will or the subsequent decree must acknowledge, and then disavow, the effect of the subsequent divorce, or whether an inference, drawn from the will and the decree, suffices.³

The facts necessary to resolve this case are straight-forward and largely undisputed. Jesse W. Suiters, the decedent, and Annie Lee Suiters, the respondent, were married in 1965. They separated in 1996, executing, on July 29, 1996, a Voluntary Separation Agreement and Property Settlement Agreement (“separation agreement”). In addition to addressing the property settlement between the parties, the separation agreement addressed the parties' inheritance rights and provided for the agreement's future effect on any subsequent divorce proceedings. As to the former, Paragraph 11 provided:

“11. Release of Inheritance Rights. Except as otherwise provided herein, each party waives all right, title, and interest in and to the estate of the other, of every nature and description, including all right to administer same. Each party likewise waives all right to dower or courtesy, if any, in and to the propertynow owned by the other or property to be acquired in the future. Notwithstanding the mutual releases set forth in this paragraph, either party to this Agreement may, by his or her Last Will and Testament, give, devise or bequeath any part or all of his or her estate to the other.”

Paragraph 17 dealt with the enforceability of the separation agreement. It provided:

“17. Incorporation. With the approval of any court of competent jurisdiction in which any divorce proceedings may now be pending, or which may hereafter be instituted, this Agreement shall be incorporated in any decree of absolute divorce which may be passed by said Court. In the event the Court shall fail or decline to incorporate this Agreement or any provisions thereof in said decree, when and in that event the parties, for themselves and their respective heirs, personal representatives and assigns, agree that they will, nevertheless, abide by and carry out all of the provisions thereof. It is further agreed that, regardless of whether said Agreement or any party thereof is incorporated in any such decree, the same shall not be merged in said decree; but said Agreement and all terms thereof shall continue to be binding upon the parties.”

The parties were divorced by Decree of Absolute Divorce, entered May 25, 2006, in proceedings initiated by the respondent and in which the decedent did not appear. The decree incorporated, but did not merge, the separation agreement.

Almost three (3) years earlier, on June 18, 2003, the decedent executed his Last Will and Testament. As pertinent to this case, it provided:

“All the rest, residue and remainder of my estate and property, whether real, personal, or mixed, howsoever acquired and wheresoever situated, including any and all property with respect to which I have a power of appointment or power of disposition, I give, devise, and bequeath unto Virginia Lee Suiters, if she survives me. In the event that Virginia Lee Suiters does not survive me or in the event that she shall die with me in, or as a result of, a common accident or common disaster, or shall die under circumstances which make it doubtful or uncertain as to whether she or I died first, or which make it difficult or impossible to determine which of us died first, then, in either of such events, I give, devise and bequeath all such residuary property to my sister Mary Ann Nichols, per stirpes and not per capita. If my sister, Mary Ann Nichols has predeceased me, then I give, devise, and bequeath that share equally to my nephews and nieces, Sam Nichols, Elaine Nichols and Nancy Nichols, per stirpes and not per capita.”

The respondent had been designated personal representative and also as the decedent's attorney in fact by a Power of Attorney, executed by the decedent.

The decedent died shortly after the divorce and his will was admitted to probate. The central issue of those proceedings was the applicability of E & T § 4–105(4). The Circuit Court for Wicomico County, after a hearing, held that the revocation by divorce provision did apply and that the exceptions did not apply,⁴ resulting in the revocation of the provisions relating to the respondent. The Court of Special Appeals, in an unreported opinion, reversed the judgment of the Circuit Court, holding that the revocation of § 4–105(4) was not triggered because the exceptions it recognizes applied. It reasoned:

“Pursuant to the plain meaning of the words, “unless otherwise provided in the ... decree,” we believe that, as long as the decree provides language that shows the intent of the parties to provide for a legacy to a spouse regardless of their marital status, the exception to the revocation of a will by divorce or annulment under Section 4–105(4) has been invoked.”

The petitioner filed a petition for writ of certiorari, which this Court granted. Nichols v. Suiters, 420 Md. 81, 21 A.3d 1063 (2011). For the reasons that follow, we shall reverse the judgment of the intermediate appellate court.

The petitioner construes § 4–105(4) as providing a straight-forward, bright-line standard: after the divorce of the testator and his or her spouse, all provisions in the testator's pre-existing will automatically are revoked, in the absence of a provision in that will or in the decree of divorce, stating a contrary intent. Thus, as he sees it, “[t]he intent of the Decedent is not relevant to the application of Section 4–105(4)....” He argues:

“Thus, Section 4–105(4) of the Estates and trusts Article of the Maryland Code applies to revoke, as a matter of law, the provisions in the Will that benefit Suiters because the Will was executed prior to the divorce. This is true even though the Will was executed after the Separation Agreement but before the divorce. The only relevant facts to the application of Section 4–105(4) are the date of the divorce and the date of the execution of the Will. The date of the divorce is subsequent to the date of the execution of the Will, and therefore any provision benefitting Suiters was revoked by operation of law.”

The petitioner relies on the pre–1990 version of § 2–508,⁵ the Uniform Probate Code provision relating to the revocation of will provisions by divorce and cases interpreting the Uniform Probate Code provision or provisions patterned after, or similar, to it. See, e.g., Friedman, 412 Md. 328, 987 A.2d 60 (2010); ⁶McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982); Papen v. Papen, 216 Va. 879, 224 S.E.2d 153 (1976); Matter of Will of Reilly, 201 N.J.Super. 306, 493 A.2d 32 (1985); Estate of Reeves, 233 Cal.App.3d 651, 284 Cal.Rptr. 650 (1991); Matter of Estate of Rayman, 495 N.W.2d 241 (Minn.App.1993); Matter of Estate of Knospe, 165 Misc.2d 45, 626 N.Y.S.2d 701 (N.Y.Sur.1995).

In any event, the petitioner maintains, citing Gibboney v. Wachovia Bank, N.A., 174 N.C.App. 834, 622 S.E.2d 162, 164–65 (2005) and Buchholz v. Storsve, 740 N.W.2d 107, 112 (S.D.2007), the exceptions set out in § 4–105(4) simply do not apply under the facts of this case. This is so, in the case of the will, he submits, because the will, in effect, does no more than merely name the respondent as a beneficiary. It does not “make reference to the fact that a subsequent divorce will not alter the spouse's status as a beneficiary under the will.” With regard to the divorce decree, the petitioner argues that, because the separation agreement never became a part of the divorce decree, that exception also does not apply.⁷

The respondent sees the case and the issue entirely differently. Noting that the language of the Maryland statute—“unless otherwise provided in the will or decree”—differs from that of the Uniform Probate Code—“unless the will expressly provides otherwise” ⁸—and the cases on which the petitioner relies—e.g. “unless...