In re Will of Allen

IN THE SUPREME COURT OF NORTH CAROLINA

No. 227PA17

Filed 7 December 2018

IN THE MATTER OF THE WILL OF JAMES PAUL ALLEN, Deceased

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 380 (2017), reversing an order

of summary judgment in favor of propounder entered on 14 September 2016 by Judge

Jeffery B. Foster in Superior Court, Beaufort County, and remanding for entry of

summary judgment in favor of caveators. Heard in the Supreme Court on 28 August

2018.

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

Lanier, King & Paysour, PLLC, 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
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Opinion of the Court

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,

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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):

1 This opinion references the handwritten notation as “the codicil” based on the term’s
definition in Black’s Law Dictionary, which includes that, “[w]hen admitted to probate, the
codicil becomes a part of the will.” Codicil, Black’s Law Dictionary (10th ed. 2014).

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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

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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

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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

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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 prior will.” Armstrong v. Armstrong, 235 N.C. 733,

735, 71 S.E.2d 119, 121 (1952) (citations omitted). When a codicil does not revoke the

entire will, “[t]he codicil and the will considered together as a whole constitute the

final disposition of [the] testator’s property.” In re Goodman, 229 N.C. at 446, 50

S.E.2d at 35 (citations omitted).

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Whether will or codicil, “[t]he maker [of the instrument] must intend at the

time of making that the paper itself operate as a will, or codicil; an intent to make

some future testamentary disposition is not sufficient.” In re Will of Mucci, 287 N.C.

26, 30, 213 S.E.2d 207, 210 (1975); see also In re Will of Johnson, 181 N.C. 303, 306,

106 S.E. 841, 842 (1921) (concluding that a decedent’s letter asking a friend to prepare

a will for him and describing some of the intended provisions in the will, but which

the decedent retained in lieu of mailing it to the addressee, was not a will because

“[t]here [was] nothing in the paper to show a present purpose that it should be the

final disposition of his property”). For holographic wills and codicils specifically, “the

instrument itself” must indicate the existence of testamentary intent and be “found

among the deceased’s valuable papers after his death or in the possession of some

person with whom the deceased had deposited it for safekeeping.” In re Mucci, 287

N.C. at 30-31, 213 S.E.2d at 210 (citations omitted). Otherwise, “the instrument may

not, as a matter of law, be admitted to probate.” Id. at 31, 213 S.E.2d at 211. On the

other hand, if “a holographic instrument on its face is equivocal on the question of

whether it was written with testamentary intent and there is evidence that the

instrument was found among the [deceased’s] valuable papers . . . the [intent] issue

is for the jury and parole evidence relevant to the issue may be properly admitted.”

Id. at 31, 213 S.E.2d at 211 (emphases added) (citations omitted).

Given the nature of a codicil as “an addition, explanation, or alteration of a

prior will,” a codicil by definition modifies a prior will. Armstrong, 235 N.C. at 735,

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71 S.E.2d at 121. To be valid a codicil need not quote in its entirety any language of

the will it intends to alter, and a court should not isolate the handwritten text from

the will itself in construing the codicil. A testator’s reference to a specific provision

of the will without restating the entire provision is not an impermissible reference to

the will. When considering the surrounding circumstances, particularly when the

codicil is written on the will itself, the codicil must simply “manifest[ ] the final

disposition [a decedent] wished made of her property.” Id. at 446, 50 S.E.2d at 36.

Any requirement to the contrary would undermine the stated purpose of will

construction, which is to determine testamentary intent.

Though a holographic codicil by its name implies that all words must be

entirely in the testator’s handwriting, any typed words appearing on the paper “would

not necessarily prevent the probate of a will” if those typed words are “not essential

to the meaning of the words in such handwriting.” Id. at 446, 50 S.E.2d at 35. For

example, in In re Will of Goodman this Court held that the testator’s handwritten

notations placed throughout her typewritten, fully executed will constituted “a valid

holographic codicil.” Id. at 447, 50 S.E.2d at 36. There the testator handwrote the

following provisions at various places on her typed will, followed by her signature:

“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.” Id. at 444-45, 50 S.E.2d at

34. In assessing the handwritten provisions, the Court looked to both the

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handwritten notations themselves and the typed will to determine that the

handwritten additions were “not so inconsistent with the provisions of the will as to

constitute revocation.” Id. at 445, 50 S.E.2d at 35. The Court then determined that

“[t]he additional words placed by [the testator] on this will written in her own

handwriting and again signed by her [were] sufficient, standing alone, to constitute

a valid holograph will” because, looking at the surrounding circumstances, the

handwritten portions and typewritten will taken together “manifest[ed] the final

disposition she wished made of her property.” Id. at 446, 50 S.E.2d at 36. While

understanding the language “one-half of estate” and “sold if needed” required

referencing various provisions of the will, such references did not invalidate the

codicil.

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.2 Moreover, the handwritten

2 As previously noted, a holographic codicil must be entirely in the testator’s

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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.

Given that the language is sufficient to indicate testamentary intent to void

Article IV of the will, the remaining question becomes 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. See In re Johnson, 181 N.C. at 306, 106 S.E. at 842

(“There is nothing in the paper to show a present purpose that it should be the final

disposition of his property . . . .”). In a case in which an ambiguity exists regarding

present testamentary intent, the issue is one for the jury to determine. See In re

handwriting. N.C.G.S. § 31-3.4(a)(1). The trial court granted summary judgment in favor of
the propounder, concluding no genuine issue of material fact existed regarding whether the
testator handwrote every portion of the codicil. Though the parties advanced arguments at
the Court of Appeals about whether the provision was entirely in the testator’s handwriting,
the Court of Appeals did not reach that issue because it reversed the trial court’s ruling and
remanded for entry of summary judgment for the caveators. In re Allen, ___ N.C. App. at
___, 801 S.E.2d at 385. Because the parties did not advance arguments about the
handwriting at this Court, we do not reach that issue in this opinion. On remand, the trial
court may determine whether to revisit the handwriting issue, i.e., whether a genuine issue
of material fact exists whether the handwritten provision was entirely in the testator’s
handwriting.

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Mucci, 287 N.C. at 31, 213 S.E.2d at 211. Such a factual question related to the

language of the notation makes 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.

REVERSED AND REMANDED.

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