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Issue  263  Article  415
Published:  6/1/2020

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In re: Worley (19-345) 4/21/2020
Holographic Will or Power of Attorney? Issue of Devisavit Vel Non

Chris Burti, Vice President and Senior Legal Counsel

This appeal, by the respondent, of the Superior Court's order concluding that a document probated by the Clerk of Superior Court as the decedent's holographic will didn't constitute the decedent's Last Will and Testament. The decedent died in 2017 unmarried and without lineal descendants, but was survived by three of his four siblings.

The respondent was his long-time companion and offered the document at issue for probate as his will which leaves her his entire estate. Petitioners are the three surviving siblings (the "Siblings"). The other Respondents are the descendants (the descendants) of the sibling who predeceased the decedent.

The document ( "Holographic Document.") purporting to be in the decedent's handwriting reads:

March 13, 2001
Last Will of Paul Worley:

I want Pat [Sprouse] to have the power of attorney of all that I own. That means land, cars, money, guns, clothing and anything else!

I don't want Grace Price Worley to have none.

Signed March 13, 2001 9:00pm
Paul Worley

The Clerk of Superior Court admitted the Holographic Document to probate and while probate was pending, the Siblings commenced an estate proceeding contending that the Holographic Document was not the decedent's will and seeking an order revoking the probate. After a hearing on the matter, the Clerk dismissed the petition, concluding a lack of subject-matter jurisdiction to determine whether the Holographic Document's language exhibits testamentary intent. The Clerk's was appealed to the Superior Court which concluded, as a matter of law, that it was not the decedent's will because it "makes no testamentary disposition of [The decedent's] property [but] merely appoints [Ms.] Sprouse as Power of Attorney," an appointment which lost all effect upon The decedent's death and remanded the matter to the Clerk directing revocation of the certificate of probate.

On appeal, the Court of Appeals determined that the Clerk properly determined that she lacked jurisdiction and that the matter was properly brought before the Superior Court because the parties disputed the testamentary effect of the document being offered for probate rather than the construction of the testator's intent:

In such cases, the matter must be transferred to Superior Court to resolve whether the document is, in fact, the will of the decedent. Specifically, our General Assembly directs that "[u]pon the filing of a caveat or raising of an issue of devisavit vel non, the clerk shall transfer the cause to the superior court, and the matter shall be heard as a caveat proceeding." N.C. Gen. Stat. §28A-2A-7(b) (emphasis added).

"Devisavit vel non" is a Latin phrase meaning "he devises or not," In re Estate of Pickelsimer, 242 N.C. App. 582, 587, 776 S.E.2d 216, 219 (2015), and, when invoked, raises an issue "of whether or not the decedent made a will and, if so, whether [the document] before the court is that will." In re Will of Hester, 320 N.C. 738, 745, 360 S.E.2d 801, 806 (1987).

The Court of Appeals observed that while the Siblings did not formally file a caveat, they did effectively raise the issue of devisavit vel non by contending that the Holographic Document was not the decedent's will. Therefore, the Clerk was correct in concluding that she lacked jurisdiction to decide the issue, and the matter was properly brought before the Superior Court.

After resolving that issue, the Court of Appeals next considered whether the trial court properly determined, as a matter of law, that the Holographic Document should not be probated, without submitting any issue to a jury. The Court concluded that there was an issue of material fact which the Superior Court should have submitted to a jury and therefore, the Superior Court erred in deciding the issue as a matter of law.

The Court of Appeals reasoned that when a propounder fails to come forward with evidence sufficient for a jury find that there has been a testamentary disposition it may be proper for the trial court under Rule 50 of the Rules of Civil Procedure to enter a directed verdict in favor of the caveators and adjudge, as a matter of law, that there can be no probate.

In this case the Superior Court decided as a matter of law, that the Holographic Document was not the decedent's will. The trial court concluded that the language used failed to accomplish any testamentary purpose reasoning that the Holographic Document merely appoints "Pat" as The decedent's "power of attorney" over his property which terminates when The decedent dies.

However the Court concluded that a jury could reasonably infer from the language used that the decedent intended the document to be his will. The Holographic Document is titled "Last Will of Paul Worley" and the Court opined that a jury might reasonably determine that the decedent drafted the document with testamentary intent, in which case:

 " could reasonably be construed from the language used in the Holographic Document and perhaps from other competent evidence presented that [the decedent] intended to grant 'Pat' with some power over his property to take effect only after he died. See Institute v. Norwood, 45 N.C. 65, 69 (1852) (internal quotation marks omitted) (explaining that a court, "under the maxim ut res majis valeat quam pereat will try to give" meaning to every clause in a will). For instance, the language could be construed an expression of intent to grant Pat with a power of appointment over his property at his death, pursuant to Chapter 31D of our General Statutes. See N.C. Gen. Stat. § 31D-2-201 cmt. (2017) (recognizing the appropriateness of conferring a power of appointment over one's property in a will). Indeed, one could reasonably construe from the language employed by The decedent, presumably a nonlawyer, that he wanted Pat to have absolute discretion to dispose of his estate in any way she saw fit, so long as she did not give any of his estate to 'Grace Price Worley.'"

The Court observed that in the alternative:

... it might be reasonable to construe the language as an expression of intent to grant Pat with the power of an executrix over his estate. Or, it could be determined that the language could be subject to reformation pursuant to N.C. Gen. Stat. §31-61 (2017) to change to language altogether to conform the language to Mr. Worley's true intent. (We do not express any opinion regarding any of these or other possible interpretations. We simply express that there are ways to construe the Holographic Document to give it testamentary meaning and effect, should a jury determine the Document to be a will.)

The opinion reverses the Superior Court's order directing that probate be revoked, and remands the matter for further proceedings to determine:

"...whether The decedent intended the Holographic Document to be his will and, otherwise, whether the Document meets the other statutory requirements of a holographic will. The issues of devisavit vel non are for a jury to decide, not the Superior Court as a matter of law at this point.

Should it be determined that the Holographic Document is not [The decedent's] valid will, then the Superior Court shall direct the Clerk to revoke probate. However, should it be determined that the Holographic Document does meet the statutory requirements of a holographic will (assuming those requirements are put at issue) and that the document was executed with testamentary intent and is otherwise valid, this estate proceeding shall continue, including the resolution as to the construction that is to be given to the language contained in the Holographic Document.

The opinion makes it clear that the courts should give effect to every reasonable expression of testamentary effect. The fact that this question went to the Court of Appeals, makes it clear reasonable attorneys may disagree on the nature and extent of that intent, as a result it will be prudent for real property practitioners to make sure that all interested parties have signed off on whatever conclusion has been determined in order to avoid protracted and expensive litigation should that conclusion be disputed.

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