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Issue  251  Article  403
Published:  1/29/2019

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In re Will of Allen, NC S. Ct. (227PA17) 12/7/2018
North Carolina Supreme Court Clarifies Holographic Will Doctrine

Chris Burti, Vice President and Senior Legal Counsel

This opinion deals with the courts' efforts to interpret the effect of the testator's handwritten alteration to his will in resolving the outcome of a caveat. The propounder was a nephew and the caveators were grandchildren of an unrelated intimate friend of the testator who predeceased the testator. Article IV of the properly executed, typewritten will of the decedent devised certain substantial real property to the nephew for life with a remainder to the caveators if their grandmother did not survive the testator. At some point after the execution of the will the following handwritten notation was made on the will: "Beginning 7-7-03 do not honor Article IV Void Article IV James Paul Allen" presumably by the testator. After the 2014 death of the testator, the will was probated with the notation treated as a holographic codicil and the caveat filed. Ultimately, after transfer to superior court, the trial court entered an order granting summary judgment in favor of the propounder.

In a unanimous opinion, the North Carolina Court of Appeals appropriately cited In re Will of Goodman, 229 N.C. 444 (1948) in recognizing that 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." However, the Court of Appeals in reversing the trial court seems to have strained to reach a conclusion that thwarted the stated and apparent intent of the testator resulting in a benefit to parties who are not related to the decedent and who are not the natural objects of his bounty. The Supreme Court determined that intent of the testator in the codicil was both unequivocal and unambiguous.

The Court of Appeals back doored its logic by quoting Goodman as follows:

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. (emphasis in the Court of Appeals opinion)

The problem with the Court of Appeals declaring that this language compels their conclusion that the holographic codicil is not valid is twofold. First, contrary to the conclusion of the Court of Appeals, no interpretation of the typewritten material need be made to give effect to the unambiguous statement of the testator when given its plain meaning. The meaning of the words in the will is clearly not essential to give effect to their deletion. Second, the Supreme Court in Goodman distinguishes the prior holding in the case of In re Will of Roediger, 209 N.C. 470 "where the testator made pencil interlineations and marginal notes on a typewritten attested will, it was held the paper was properly probated after eliminating the pencil notations. But it did not appear in that case that the testator signed the pencil notations or manifested intent that they should be regarded as part of or codicil to his will." Clearly then, the Supreme Court is stating that had the interlineations of Roediger been signed, they would have been effective to delete the typewritten language in the will in question.

The Supreme Court opinion states:

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, 180 N.C. 5, 8, 103 S.E. 917, 918 (1920) (noting that "[t]he object of" the rules governing will construction "is that there may be no doubt as to the intention of the supposed testator"). Therefore, the rules must be applied to accomplish such a purpose, as occurred in In re Goodman.

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. 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.

Finally, the Court of Appeals had stated that "...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."  While this is an interpretation, logic doesn't compel this as the only conclusion.  There is nothing to suggest that it was not simply a contemporaneous notation of the date of the codicil. "The intent of the testat[or] is the polar star that must guide us in the interpretation of h[is] will. This intent is to be gathered from a consideration of the instrument from its four corners, and such intent will be given effect, unless contrary to some rule of law or at variance with public policy." Weathers v. Bell, 232 N.C. 561 (N.C., 1950) (citations omitted).

The Supreme Court, in its opinion, also questioned; "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." (citations omitted) The Court determined that this factual question made summary judgment inappropriate here. "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."

It seems clear that the effect of this decision will be that clearly stated intentions of a testator that are not contrary to any clearly applicable rule of law and not at variance with public policy will be honored and it will help avoid calling into question every decedent's self-help codicil and exposing their estates to unreasonable scrutiny, expensive litigation and uncertain outcomes.


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