In re the Will of James Paul Allen

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1209
Filed: 6 June 2017
Beaufort County, No. 14 E 117
IN THE MATTER OF THE WILL OF JAMES PAUL ALLEN, Deceased.
Appeal by Caveators from order entered 14 September 2016 by Judge Jeffrey
B. Foster in Beaufort County Superior Court. Heard in the Court of Appeals 1 May
2017.
Ranee Singleton, PLLC, by Ranee Singleton, for propounder-appellee.
Lanier, King & Paysour, PLLC, by Jeremy Clayton King and Steven F.
Johnson, II, for caveators-appellants.
ZACHARY, Judge.
Hope Paiyton Robinson and Christian Ann Robinson (the caveators) appeal
from an order granting summary judgment in favor of Melvin Ray Woolard (the
propounder). On appeal, the caveators argue that the trial court erred by ruling that
handwritten notes on a will executed by James Paul Allen (the decedent) constituted
a valid holographic codicil to the decedent’s will. We conclude that the caveators’
argument has merit.
I. Factual and Procedural Background
On 29 August 2002, the decedent executed a typewritten will drafted by Mr.
William Mayo, an attorney who represented the decedent in his legal matters. The
IN RE: ALLEN
Opinion of the Court
will was executed and sworn to by the decedent and two witnesses, and the parties
do not dispute that it meets the requirements of N.C. Gen. Stat. § 31-3.3 (2015) for a
properly attested self-proving will. The will included, as relevant to this appeal, the
following disposition of the decedent’s property:
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 of 9096 Hwy 99 N, Pantego,
N.C. 27860.
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.
The parties do not dispute that the propounder is the decedent’s nephew;
Melva Marlene Woolard is the propounder’s sister and the decedent’s niece; Ms.
-2-
IN RE: ALLEN
Opinion of the Court
Robinson was a woman with whom the decedent had a relationship; and the caveators
are Ms. Robinson’s granddaughters. Article IV of the will includes the only devise
benefitting the caveators. This section provides that if Ms. Robinson did not survive
the decedent, the propounder would receive a life estate in the decedent’s real
property located in Beaufort, Hyde, and Washington Counties, with the caveators
receiving the remainder interest. Pursuant to Article V of the will, the propounder
would also inherit other property in fee simple. The present appeal arises from the
parties’ dispute over the legal effect, if any, of the following handwritten notation on
the will: “Beginning 7-7-03 do not honor Article IV Void Article IV James Paul Allen”
(absence of punctuation in original). If the handwritten note were given effect as a
holographic codicil, the result would be to disinherit the caveators.
On 8 March 2014, the decedent died in Beaufort County, North Carolina. Ms.
Robinson had died at an earlier date. On 13 March 2014, the propounder filed an
affidavit for probate of a holographic codicil, using Administrative Office of the Courts
(AOC) Form AOC-E-302. On this form Ms. Woolard averred that she had found the
will among the decedent’s valuable papers or effects, and Mr. May and Ms. Tammy
Hodges averred that they were familiar with the decedent’s handwriting and believed
that the handwritten notes on the will were entirely in the decedent’s handwriting.
On 17 March 2014, the will was offered for probate. On 1 October 2015, the
caveators filed a caveat to the will, asserting that the handwritten notes on the will
-3-
IN RE: ALLEN
Opinion of the Court
did not constitute a holographic codicil to the will. The caveators asked that the
matter be transferred from the office of the Clerk of Court to Beaufort County
Superior Court, and sought a judgment “setting aside and declaring as null and void
the probate in common form of the purported Holographic Codicil, with an
adjudication that the Will is the Last Will and Testament of the Decedent[.]” The
propounder filed an amended response to the caveat on 7 October 2015. On 10 March
2016, the Clerk of Court entered an order transferring the matter to Superior Court,
and on 8 April 2016, the trial court entered an Order of Alignment.
The propounder filed a motion for summary judgment on 11 August 2016.
Following a hearing conducted on 29 August 2016, the trial court entered an order on
14 September 2016, granting summary judgment in favor of the propounder. The
caveators noted a timely appeal to this Court.
II. Standard of Review
“A caveat is an in rem proceeding and operates as ‘an attack upon the validity
of the instrument purporting to be a will.’ ” Matter of Estate of Phillips, __ N.C. App.
__, __, 795 S.E.2d 273, 278 (2016) (quoting In re Will of Cox, 254 N.C. 90, 91, 118
S.E.2d 17, 18 (1961)). “[S]ummary judgment may be entered in a caveat proceeding
in factually appropriate cases.” In re Will of Mason, 168 N.C. App. 160, 165, 606
S.E.2d 921, 924 (2005).
-4-
IN RE: ALLEN
Opinion of the Court
Pursuant to N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015), summary judgment is
properly granted “if 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.” “When considering a motion for summary judgment, the trial judge must
view the presented evidence in a light most favorable to the nonmoving party.” In re
Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (internal quotation
omitted). In addition:
The party moving for summary judgment bears the burden
of establishing that there is no triable issue of material
fact. This burden may be met by proving that an essential
element of the opposing party’s claim is nonexistent, or by
showing through discovery that the opposing party cannot
produce evidence to support an essential element of his
claim or cannot surmount an affirmative defense which
would bar the claim.
DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)
(internal quotation and citation omitted).
“[O]nce the party seeking summary judgment makes the required showing, the
burden shifts to the nonmoving party to produce a forecast of evidence demonstrating
specific facts, as opposed to allegations, showing that he can at least establish a prima
facie case at trial.” Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 448, 579
S.E.2d 505, 507 (2003) (internal quotation omitted).
-5-
IN RE: ALLEN
Opinion of the Court
“The standard of review for summary judgment is de novo.” Forbis v. Neal, 361
N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citation omitted). “ ‘Under a de novo
review, the court considers the matter anew and freely substitutes its own judgment’
for that of the lower tribunal.” Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334,
337, 678 S.E.2d 351, 354 (2009) (quoting In re Appeal of The Greens of Pine Glen Ltd.
P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
III. Requirements for a Holographic Codicil to a Typewritten Will
“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). “[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 prior will.” Armstrong v. Armstrong, 235 N.C. 733, 735, 71 S.E.2d 119,
121 (1952) (citations omitted).
The statutory requirements for partial revocation or change to a will are found
in N.C. Gen. Stat. § 31-5.1 (2015), which states in relevant part that “[a] written will,
or any part thereof, may be revoked only (1) [b]y a subsequent written will or codicil
or other revocatory writing executed in the manner provided herein for the execution
of written wills[.]” The “manner provided” for the execution of a holographic will is
set out in N.C. Gen. Stat. § 31-3.4 (2015), which provides in pertinent part as follows:
(a) A holographic will is a will
-6-
IN RE: ALLEN
Opinion of the Court
(1) Written entirely in the handwriting of the testator
but when all the words appearing on a paper in the
handwriting of the testator are sufficient to constitute a
valid holographic will, the fact that other words or printed
matter appear thereon not in the handwriting of the
testator, and not affecting the meaning of the words in such
handwriting, shall not affect the validity of the will, and
(2) Subscribed by the testator . . . and
(3) Found after the testator’s death among the testator’s
valuable papers or effects[.] . . .
Our Supreme Court has held that in some circumstances “an addenda in the
handwriting and over the signature of the testatrix written on the face of the
typewritten attested will may be upheld as a holograph codicil thereto.” In re Will of
Goodman, 229 N.C. 444, 445, 50 S.E.2d 34, 35 (1948). However, our appellate
jurisprudence has established specific requirements for a valid holographic codicil to
a will. N.C. Gen. Stat. § 31-3.4(a)(1) states that “the fact that other words or printed
matter appear [in a holographic will] not in the handwriting of the testator, and not
affecting the meaning of the words in such handwriting, shall not affect the validity
of the will[.]” Goodman applied this rule to a holographic codicil to a typewritten will:
While the derivative and applied meaning of the word
holograph indicates an instrument entirely written in the
handwriting of the maker, this would not necessarily
prevent the probate of a will where other words appear
thereon not in such handwriting but not essential to the
meaning of the words in such handwriting. But where
words not in the handwriting of the testator are essential
to give meaning to the words used, the instrument will not
be upheld as a holograph will.
-7-
IN RE: ALLEN
Opinion of the Court
Goodman, 229 N.C. at 446, 50 S.E.2d at 35 (emphasis added) (citations omitted). In
Goodman, the testatrix added and signed the following handwritten words to her
typewritten will: “To my nephew Burns Elkins 50 dollars” . . . “Mrs. Stamey gets one-
half of estate if she keeps me to the end”; and . . . “My diamond ring to be sold if
needed to carry out my will, if not, given to my granddaughter Mary Iris Goodman[.]”
Goodman at 444-45, 50 S.E.2d at 34. Because the effect of these additions to the
testatrix’s will could be determined without reference to any other part of her will,
our Supreme Court held that the handwritten notes on the testatrix’s will constituted
a valid holographic codicil:
[T]he additional words placed by her on this will written in
her own handwriting and again signed by her are
sufficient, standing alone, to constitute a valid holograph
will; that is, the legacy of $ 50 to Burns Elkins, the devise
of one-half of her estate to Mrs. Stamey, and the bequest of
the diamond ring to Mary Iris Goodman are sufficiently
expressed to constitute a valid disposition of property to
take effect after death.
Goodman at 446, 50 S.E.2d at 36 (emphasis added). However, 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. For example, in
In re Smith’s Will, 218 N.C. 161, 10 S.E.2d 676 (1940), the decedent’s will was “duly
probated as a holographic will[.]” Smith, 218 N.C. at 161, 10 S.E.2d at 676.
Thereafter, the decedent’s widow submitted for probate “a purported codicil or
-8-
IN RE: ALLEN
Opinion of the Court
supplemental will” that included both typewritten and holographic elements. Smith
at 162, 10 S.E.2d at 677. Our Supreme Court held that:
[T]he paper writing presented 6 March, 1939, was
improvidently admitted to probate in common form. An
examination of the instrument leads us to the conclusion
that it was not in form sufficient to be entitled to probate
as a holographic will. . . . Words not in the handwriting of
the testator are essential to give meaning to the words
used.
Id. at 163-64, 10 S.E.2d at 677-78 (emphasis added) (citations omitted).
In 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. “An intent to
make a future testamentary disposition is not sufficient.” Stephens v. McPherson, 88
N.C. App. 251, 254, 362 S.E.2d 826, 828 (1987) (citing In re Will of Mucci, 287 N.C.
26, 30, 213 S.E.2d 207, 210 (1975)). For example, in In re Johnson’s Will, 181 N.C.
303, 106 S.E. 841 (1921), the Court held that a letter written by the decedent directing
his attorney to “write my will for me” “indicat[ed] a clear purpose to have a will
prepared” and “outlin[ed] the contents of a will” but did not show the decedent’s
present testamentary purpose, instead constituting instructions for the future
preparation of a will. Johnson, 181 N.C. at 306, 106 S.E.2d at 842.
IV. Discussion
-9-
IN RE: ALLEN
Opinion of the Court
Preliminarily, we note that the parties have advanced arguments concerning
the extent to which there is a genuine issue of material fact as to whether the notation
on the decedent’s will was entirely in the decedent’s handwriting. As discussed below,
we have concluded that even assuming, arguendo, that the notation on the decedent’s
will was written entirely by him, the note nonetheless does not meet the requirements
for a valid holographic codicil. As a result, we find it unnecessary to address the
parties’ arguments on the legal significance of their respective affidavits on the
question of whether the entire notation is in the decedent’s handwriting.
The following handwritten notation appears on the margin of the decedent’s
will: “Beginning 7-7-03 do not honor Article IV Void Article IV James Paul Allen”.
For two separate reasons, this notation does not meet the requirements for a valid
holographic codicil. First, the notation directs that “beginning 7-7-03” Article IV
should no longer be honored. The decedent executed the will on 29 August 2002. The
record does not indicate whether the decedent added the handwritten note on 7 July
2003 or at an earlier date, in which case it would have been an expression of the
decedent’s intention to make a future change to his will.
In addition, the words of the handwritten notation are not sufficient, standing
alone, to establish their meaning. In order to understand the notation, it is necessary
to incorporate or refer to the contents of “Article IV” to which the note refers. As
discussed above, our appellate jurisprudence establishes that a holographic codicil is
- 10 -
IN RE: ALLEN
Opinion of the Court
invalid if “[w]ords not in the handwriting of the testator are essential to give meaning
to the words used.” Smith at 163-64, 10 S.E.2d at 677-78. We conclude that under
binding precedent of our Supreme Court, the handwritten notation does not
constitute a valid holographic codicil to the will.
In reaching this conclusion, we have carefully considered the cases cited by the
caveators. We take judicial notice that one of the cases cited by the caveators, Jones
v. Jones, 17 N.C. 387 (1833), was decided more than three decades prior to the
invention of the typewriter and as a result does not address the requirements for a
holographic codicil to a typewritten will. The other cases cited by the caveators state
various general principles governing the proper interpretation of wills and codicils.
However, these cases do not address or purport to alter the rule that in order to be
valid, the meaning of a holographic codicil must not require reference to other words
in the typewritten part of the will.
For the reasons discussed above, we conclude that the trial court erred by
granting summary judgment for the propounder. Because the record establishes that,
as a matter of law, the handwritten notation on the decedent’s will is not a valid
holographic codicil, the trial court’s order must be reversed and remanded for entry
of summary judgment in favor of the caveators.
REVERSED AND REMANDED.
Chief Judge McGEE and Judge HUNTER, JR. concur.
- 11 -