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Home / Courts / N.C. Supreme Court / Trusts & Estates  –  Wills – Handwritten Codicil – Reference to Self-Proving Will Provision – Testamentary Intent

Trusts & Estates  –  Wills – Handwritten Codicil – Reference to Self-Proving Will Provision – Testamentary Intent

When a testator wrote on the face of his Aug. 29, 2002, self-proving will that Article IV of the will should be voided (thereby disinheriting the caveators in favor of the propounder), the testator did not need to rewrite all of Article IV for his handwritten codicil to be sufficient. However, because the codicil opens with “Beginning 7-7-03,” there is a question of fact as to whether the codicil sufficiently indicates present testamentary intent.

We reverse the Court of Appeals’ decision (which reversed summary judgment for the propounder and remanded for entry of summary judgment in favor of the caveators) and remand for further proceedings.

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 of Appeals 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 holographic codicil to the will.”

However, a codicil by definition modifies a prior will. 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. Any requirement to the contrary would undermine the stated purpose of will construction, which is to determine testamentary intent.

The evidence here, when viewed in a light most favorable to the nonmoving parties, clearly indicates that the will, including the handwritten provision, 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.

Given that the language is sufficient to indicate testamentary intent to void Article IV, 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. When an ambiguity exists regarding present testamentary intent, the issue is one for the jury to determine.

Reversed and remanded.

In re Will of Allen (Lawyers Weekly No. 010-094-18, 12 pp.) (Paul Newby, J.) On discretionary review from the Court of Appeals. Appealed from Beaufort County Superior Court (Jeffery Foster, J.) John Martin and Ranee Singleton for propounder; Jeremy Clayton King and Steven Johnson for caveators. N.C. S. Ct.

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