Dye v. County Commission of Marion County ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2021 Term FILED
October 28, 2021
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0602
_____________________
HOMER DYE,
Plaintiff Below, Petitioner
v.
COUNTY COMMISSION OF MARION COUNTY,
Defendant Below, Respondent
___________________________________________________________
Appeal from the Circuit Court of Marion County
The Honorable David R. Janes, Judge
Case No. CC-24-2016-AA-3
REVERSED AND REMANDED WITH DIRECTIONS
_________________________________________________________
Submitted: September 28, 2021
Filed: October 28, 2021
Richard R. Marsh, Esq. Charles A. Shields, Esq.
Flaherty Sensabaugh Bonasso PLLC Assistant Prosecutor
Clarksburg, West Virginia Marion County Prosecuting
Counsel for Petitioner Attorney’s Office
Fairmont, West Virginia
Counsel for Respondent
JUSTICE WOOTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘This Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syllabus
Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, State
v. Spade, 225 W. Va. 649, 695 S.E.2d 879 (2010).
2. Neither the provisions establishing the ex parte will probate
procedure, West Virginia Code §§ 41-5-10 to -11 (2019), nor the provisions creating the
office of fiduciary supervisor, West Virginia Code §§ 44-3A-1 to -44 (2019 & Supp. 2021),
provide statutory authority for a fiduciary supervisor to undertake an independent
investigation into the validity of a will that has been admitted into probate.
3. There is no mechanism contained in the ex parte probate procedure
set forth in West Virginia Code § 41-5-10 (2019) and West Virginia Code § 41-5-11 (2019)
that allows a county commission to rescind its prior order admitting a will to probate.
i
WOOTON, Justice:
The petitioner, Homer Dye, appeals the July 1, 2020, order entered by the
Circuit Court of Marion County, West Virginia, denying his appeal from an order entered
by the respondent Marion County Commission (“county commission”), declaring the
holographic Will of Oras Dye (“the Will”) to be void and rescinding the petitioner’s
appointment as Executor of the Estate of Oras Dye. On appeal, the petitioner raises a single
assignment of error, which contains several issues. 1 We find it necessary to only address:
1) whether the fiduciary supervisor and the county commission lacked statutory authority
to investigate the validity of a Will, and unilaterally declare it to be void, after said Will
had been admitted to probate; and 2) whether the county commission failed to provide the
petitioner with notice and an opportunity to be heard, before taking the action cited above
in voiding the Will, 2 violated the petitioner’s right to due process of law. After careful
review of the briefs, the arguments of the parties, the appendix record, and the applicable
legal authority, we find that the fiduciary supervisor lacked authority to investigate the
validity of a Will already admitted to probate, and that the county commission lacked
authority to revoke a Will’s prior admission to probate. We therefore reverse the circuit
court’s order and remand the case for entry of an order declaring that the Will of Oras Dye
1
Because the petitioner lumped several alleged errors into a single assigned error,
we have rephrased the assigned error by breaking it down into separate issues for ease of
discussion.
2
In light of the Court’s reversal based on the lack of the fiduciary supervisor’s and
the county commission’s statutory authority, we find there is no need to address the
petitioner’s argument regarding the untimeliness of the county commission’s actions.
1
was admitted to probate as a valid will on February 4, 2016, and reinstating the petitioner
as the executor of the decedent’s estate.
I. Facts and Procedural Background
On December 15, 2013, a holographic Will was signed by Oras Dye, the
petitioner’s brother. A little over two years later, Oras died on December 25, 2015; on
January 6, 2016, the petitioner took the Will to the Office of the Clerk of the County
Commission of Marion County (“county clerk”) to present it for probate. The county clerk
did not accept the Will for probate at that time but allowed it to be lodged for review. On
January 21, 2016, Cynthia A. Danley, Deputy Supervisor of the Office of the Fiduciary
Supervisors, wrote to the petitioner, explaining that in the opinion of the Fiduciary
Supervisor, David Glance (“the fiduciary supervisor”), the Will could not be proven
because it was not signed by two disinterested witnesses. 3 Ms. Danley advised the
petitioner that the decedent’s children (also referred to as the “heirs at law”) had “indicated
that one of them wishes to be appointed as Administrator of the Estate.” Ms. Danley gave
the petitioner seven days to consult with an attorney, and advised that if she did not hear
from him within that time frame, one of the heirs at law would be appointed as
administrator of the estate.
3
See W. Va. Code 41-2-1 (2019) (pertaining to competency of witnesses to a will
who also are beneficiaries under the will).
2
On January 26, 2016, after receiving the letter, the petitioner went to the
fiduciary supervisor’s office. While it is unclear from the appendix record whether the
petitioner met with the fiduciary supervisor, the county clerk, or an employee in one of
these offices, someone explained to him the requirements to probate the hand printed Will
as a holographic Will under West Virginia law. 4 He was provided with two standard form
affidavits entitled “Proof of Holographic Will,” for two witnesses to execute concerning
the verification of the decedent’s handwriting. 5
4
West Virginia Code § 41-1-3 (2019) provides:
No will shall be valid unless it be in writing and signed
by the testator, or by some other person in his presence and by
his direction, in such manner as to make it manifest that the
name is intended as a signature; and moreover, unless it be
wholly in the handwriting of the testator, the signature shall be
made or the will acknowledged by him in the presence of at
least two competent witnesses, present at the same time; and
such witnesses shall subscribe the will in the presence of the
testator, and of each other, but no form of attestation shall be
necessary.
Also, this Court held in syllabus point one of In re Teubert’s Estate, 171 W. Va. 226, 298
S.E.2d 456 (1982), that “W. Va. Code, 41-1-3, provides that holographic wills are valid in
this State if they are wholly in the handwriting of the testator and signed. The third and
final requirement for a valid holographic will in our jurisdiction is that the writing must
evidence a testamentary intent.”
5
The circuit court found that the affidavits were “the same Affidavits given to all
persons tendering a holographic will for probate in Marion County, West Virginia, to
provide the Marion County Clerk evidence authenticating the handwriting contained in a
holographic will.”
3
The petitioner had the two affidavits signed and notarized for attachment to
the Will that was lodged in the county clerk’s office. In the two affidavits, Alicia Healey
and Yvonne Shaw, respectively, each swore that they knew the decedent and had seen him
write frequently within the time period each affiant knew him and
had been acquainted with his genuine proper handwriting for a
number of years, and . . . [was] acquainted with and do know
his handwriting and would and do know it when . . . [each
affiant saw] it, and that the handwriting of said will of Oras D.
Dye is the own genuine proper handwriting of said Oras D.
Dye.
The petitioner then provided the completed affidavits to the county clerk. On February 4,
2016, the Will, with the accompanying affidavits, was admitted to probate and recorded by
the county clerk’s office, in vacation, as a holographic Will.
After admitting the Will to probate and recording it, the fiduciary supervisor,
acting unilaterally and despite the lack of any objection having been lodged by anyone,
decided to undertake his own investigation of the Will. By letter dated February 23, 2016,
Ms. Danley informed the petitioner that “Mr. Glance, the Fiduciary Supervisor wishes to
contact the witnesses who signed the Affidavits for Proving The Holographic Will.” The
petitioner was asked to provide the fiduciary supervisor with the addresses of the two
affiants, Alicia Healey and Yvonne Shaw. The fiduciary supervisor, in turn, sent a letter,
dated March 1, 2016, 6 to Ms. Healey and Ms. Shaw, respectively, stating:
6
Interestingly, while the county commission’s order voiding the Will provides that
this letter was sent to the witnesses “[i]n response to the inquiries of the Fiduciary
4
You have recently sworn, under oath, in Affidavits concerning
the handwritten Will of Oras Dye.
Before additional litigation takes place over this Will, I want
to make sure of your position in this matter. The Will is printed
and then signed by Oras Dye.
Is it your sworn testimony that the printed Will was ALL done
by Oras Dye? Or is it your sworn testimony that the signature
on the Will is that of Oras Dye and you do not know who
printed the Will. This is an important difference under West
Virginia law, so I need you to sign the enclosed form and return
it to our office.
Both witnesses responded to this inquiry by indicating that they only intended to verify the
decedent’s signature on the Will.
By letter dated April 18, 2016, the petitioner’s counsel informed Ms. Danley
of the petitioner’s position that the validity of the Will had been resolved on February 4,
2016, when the Will had been admitted to probate and the petitioner had been duly
appointed as executor. Counsel further advised Ms. Danley that “it is our opinion that Oras
Delmus Dye’s last will and testament is entirely valid” and that the Will comported with
the requirements of West Virginia Code § 41-1-3. 7
Supervisor[,]” the circuit court found in its order that “[i]n response to inquiries in the
pending Estate of Oras Delmus Dye, the handprinted will and affidavits were reviewed by
the Fiduciary Supervisor on March 1, 2016.” There is no evidence of any “inquiries” into
the Will in the appendix record.
7
See supra note 4.
5
By letter dated April 25, 2016, the fiduciary supervisor responded to the
petitioner’s counsel, stating that he did not believe the Will was valid. Specifically, the
fiduciary supervisor stated that he had followed up with the two affiants and “their
responses did not affirm their Affidavits. They can only say that the signature on the
Holographic Will is that of Oras Dye, but will not confirm that the Will is ‘wholly in the
handwriting of Oras Dye.’” He further stated that he
was in the process of meeting with the Prosecutor’s office to
have an Order prepared for the County Commission, voiding
the Will of record.
Since your client has the burden of proving the Will of record
“was wholly in the handwriting of Oras Dye,” I will wait
twenty (20) days before taking any action.
Finally, the fiduciary supervisor stated that he was also sending a copy of everything “to
the Heirs at Law of Oras Dye, and by a copy of this letter, asking them to file their written
position on the Holographic Will within the next twenty (20) days.” Neither the petitioner,
nor any of the heirs at law responded to the fiduciary supervisor’s letter. 8
8
The petitioner’s lack of response was due to his position that he had already proven
the Will as evidenced by its recording and his appointment as executor. While there is a
factual finding in the county commission’s “Order Voiding Will of Record,” and a similar
finding in the circuit court’s “Final Order Denying Appeal from County Commission,” that
“the children of Oras Dye met with the Fiduciary Supervisor the week of September 20,
2016, and expressed their concern that Homer Dye [the petitioner] was trying [to] sell the
real estate of their father, Oras Dye, based upon the hand printed Will that is of record in
the office of the Marion County Clerk[,]” there is no evidence in the appendix record to
support this finding.
6
By letter dated October 5, 2016, the fiduciary supervisor provided the
petitioner and the heirs at law a copy of an order entered by the county commission that
same date, voiding the Will and rescinding the petitioner’s appointment as Executor of the
Estate of Oras Dye. This order had been entered by the county commission ex parte and
without any notice to the petitioner, and the county commission’s action was based solely
upon the investigation conducted by the fiduciary supervisor, as there had never been any
objection lodged by the “heirs at law” – or anyone else – to the Will. In its order, the
county commission directed the petitioner to provide the fiduciary supervisor with a “Long
Form Settlement detailing all actions taken as Executor from the date of his appointment
to the date of settlement” within thirty days.
The petitioner appealed the county commission’s order to the circuit court
on November 2, 2016. 9 By order entered July 1, 2020, the circuit court denied the appeal,
finding that the fiduciary supervisor’s actions were “open and transparent” and were
“reasonable and proper under the circumstances.” Further, the court found that despite
notifications from the fiduciary supervisor, the petitioner failed to respond in a timely
manner “for more than five (5) months” after the fiduciary supervisor’s April 25, 2016,
letter. The circuit court then found that “[h]owever, from April 25, 2016, to October 5,
2016, the Petitioner, Homer Dye, took action to attempt to sell the real estate of his brother
9
The docket sheet and the order indicate that a hearing on the petitioner’s appeal
was held on February 11, 2020; however, there is no transcript of this hearing included in
the appendix record.
7
Oras D. Dye, under the void will, all to the prejudice of the children of Oras D. Dye, the
statutory heirs of Oras D. Dye.” 10 The circuit court determined that the petitioner had been
given “reasonable opportunities to respond to the legal issues concerning” probate of the
Will but had failed to take any action. The circuit court concluded:
Petitioner and his Counsel had timely and reasonable
opportunities to avail themselves of remedies before the
Fiduciary Supervisor and the Marion County Commission,
which satisfies all procedural due process concerns in this
particular case. Since the Petitioner and his Counsel declined
to avail themselves of the legal remedies by their own conduct,
this Court readily concludes Petitioner has not been deprived
of Due Process of Law.
The circuit court further determined that “from a thorough review of this matter, the actions
of the Fiduciary Supervisor and the Marion County Commission were in accordance with
all appropriate statutes and standards and were not otherwise arbitrary nor did they
constitute an abuse of discretion.” It is from this order that the petitioner appeals.
II. Standard of Review
“‘This Court reviews the circuit court’s final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed de novo.’ Syllabus Point 4,
Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, State v. Spade,
225 W. Va. 649, 695 S.E.2d 879 (2010); see Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194
10
Again, there is no evidence in the appendix record to support this finding.
8
W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court
is clearly a question of law or involving an interpretation of a statute, we apply a de novo
standard of review.”). With this standard in mind, we consider the parties’ arguments.
III. Discussion
A. Lack of Statutory Authority to Act
1. Fiduciary Supervisor
The petitioner contends that the fiduciary supervisor did not have the
authority to independently investigate the validity of a Will that had been accepted into
probate and recorded. The petitioner asserts that a fiduciary supervisor’s duties are set
forth in statute and primarily involve oversight of fiduciaries and the administration of
estates, not probate of wills. Further, the petitioner argues that the fiduciary supervisor,
who is an agent of the county commission, should be neutral, not acting on behalf of either
party to a disputed will. Conversely, the county commission contends that it has “exclusive
jurisdiction of ‘all matters’ probate.” 11 It also argues, albeit without citation of any legal
authority, that “[t]he Fiduciary had not only the right, but also the statutory duty and
obligation to determine the validity of the Will.”
11
See W. Va. Code § 7-1-3 (2019) (providing that county commissions “shall have
jurisdiction in all matters probate . . . .”).
9
It is undisputed that county commissions have subject-matter jurisdiction to
hear probate matters. See W. Va. Code 7-1-3. However, subject matter jurisdiction to hear
a case simply does not confer upon either the county commission or its agent the legal right
to act outside the scope of statutory law enacted by the Legislature governing probate and
administration of estates and trusts. In this regard, the office of fiduciary supervisor was
statutorily created as an “optional procedure for proof and allowance of claims against
estates of decedents.” See W. Va. Code § 44-3A-1 to -44 (2019 & Supp. 2021) (creating
counties with optional procedure for handling proof of claims made against estates).
Specifically, West Virginia Code § 44-3A-2 provides that
the office of fiduciary supervisor . . . shall not be construed to
vest judicial power in the holder . . . thereof. Such office[] [is]
created to aid and assist the county commission in the proper
and expeditious performance of the duties of such commissions
with respect to the administration of estates and trusts and
every order of finding of any fiduciary supervisor . . . shall be
subject to confirmation and approval of the county
commission. . . . Every fiduciary supervisor . . . shall have the
power to sign and issue process directed to the various parties
in any proceeding before them and may summon witnesses,
administer oaths and take testimony with respect thereto as
may be required to carry out the purposes of this chapter, but
they shall apply to the county commission or to the circuit
court, as may be appropriate and lawful for any order to compel
obedience to any such process or order issued by any such
fiduciary supervisor . . . or to compel the obedience with any
of the provisions of this chapter.
Id. (emphasis added). Further, West Virginia Code § 44-3A-44(a) provides that
10
(a) Subject to the provisions of subsection (c) of this section
and to the provisions of article thirteen [§§ 44-13-1 et seq.] 12
of this chapter, any power, authority or duty conferred upon the
clerk of the county commission with respect to the settlement,
regulation and supervision of estates in any provision of this
article or in any provision of this Code is hereby transferred to
the fiduciary supervisor created under the provisions of section
three, article three-A of this chapter.
(Footnote and emphasis added).
In accordance with this statutory scheme, a fiduciary supervisor is an agent
of the county commission. Id. § 44-3A-2. West Virginia Code § 44-3A-3(a) provides for
the creation of the office of fiduciary supervisor within the county commission and directs
that the fiduciary supervisor is to be “appointed by order of the commission and whose
office, with the consent of the clerk of the county commission, shall be housed within the
office of such clerk or shall be housed in such other office as the commission may
designate.” Id. The Legislature also provided that
[t]he fiduciary supervisor shall have general supervision of all
fiduciary matters and of the fiduciaries or personal
representatives thereof and of all fiduciary commissioners and
of all matters referred to such commissioners and shall make
all ex parte settlements of the accounts of such fiduciaries
except as to those matters referred to fiduciary commissioners
for settlement.
Id. § 44-3A-3(b).
12
See W. Va. Code § 44-13-1 to -6 (2019) (pertaining to powers of the county court
clerk where separate tribunal for police and fiscal purposes).
11
Throughout chapter 44 of the West Virginia Code pertaining to the
“Administration of Estates and Trusts,” the Legislature has identified certain express duties
to be performed by a fiduciary supervisor. 13 Taken together, those statutes establish that a
fiduciary supervisor’s responsibilities concern only the “settlement, regulation and
supervision of estates[.]” See id. § 44-3A-44(a). None of the statutory provisions give the
fiduciary supervisor a role with regard to the probate of wills. See generally W. Va. Code
13
While not intended to be an exhaustive discussion of all the statutorily delineated
duties of fiduciary supervisors, the type of duties and responsibilities the Legislature
intended for fiduciary supervisors to perform include “caus[ing] to be published” at least
once a month in a newspaper of general circulation within the county wherein “letters of
administration” have been granted, to provide notice to creditor and beneficiaries of named
deceased persons to exhibit claims they may have against the estate or to protect their
respective interests in the estate. W. Va. Code § 44-3A-4. As this statute provides, in the
notice, beneficiaries are to file any claim with the fiduciary at the address provided within
sixty days of the date of first publication of notice, or to exhibit any claim at the office of
the fiduciary supervisor within the same time frame. Id. The fiduciary supervisor may
also accept a “short form settlement” of an estate “where more than sixty days has elapsed
since the filing of any notice required by section four . . . .” and the statutory requirements
are met, “the fiduciary supervisor may proceed as in the case of any other settlement” Id.§ 44-3A-4a. Further, West Virginia Code § 44-3A-8 provides for the fiduciary supervisor
to accept claims against a decedent’s estate before publication of notice. See id. § 44-3A-
9 (providing for the fiduciary supervisor to accept proof of contingent or unliquidated
claims against a decedent’s estate). The fiduciary supervisor also may grant continuances
until all claims against an estate and objections to any claims have been heard and “passed
on.” Id. § 44-3A-10. The fiduciary supervisor is also given the statutory authority to
proceed with the summary settlement procedure, see West Virginia Code § 44-3A-19, and
is charged with preparing a report on claims, which report may include direction to a
personal representative to withhold from distribution to beneficiaries sufficient assets to
take care of contingent and unliquidated claims or claims not matured. Id. § 44-3A-20.
Further, twice a year, the fiduciary supervisor has a statutory duty to report to the county
commission on delinquent filings. Id. § 44-3A-24. Finally, West Virginia Code § 44-3A-
44(a), provides that “[w]henever by any provision of this article any paper, document or
record is required or permitted to be recorded, the fiduciary supervisor shall tender the
same to the clerk of the county commission and such clerk of the county commission shall
admit the same to record . . . .” (Emphasis added).
12
§§ 44-3a-1 to -44. Further, and critical to our decision herein, the statutory scheme
establishing the office of fiduciary supervisor is devoid of any language authorizing a
fiduciary supervisor to sua sponte undertake an independent investigation into the validity
of a will that has been previously admitted to probate.
As this Court has long held, “[i]t is fundamental that execution and probate
of wills are governed by statutory law.” In re Winzenrith’s Will, 133 W. Va. 267, 275, 55
S.E.2d 897, 902 (1949). In this regard, West Virginia Code § 41-5-1 (2019) provides that
[a] person having custody of a will shall, within thirty
days after the death of the testator is known to him, deliver such
will to the clerk of the county court [now county commission]
having jurisdiction of the probate thereof, or to the executor
named in the will, who shall offer it for probate, or deliver it to
the clerk, within a reasonable time. Any person who shall,
without reasonable cause, neglect so to deliver a will shall be
guilty of a misdemeanor, and, on conviction, be punished by a
fine not exceeding two hundred dollars; and shall in addition
be liable to any person interested in such will for all damages
caused by such neglect.
(Emphasis added). Once a will is delivered to the clerk of the county commission, it is
incumbent upon the clerk to “notify by mail or otherwise the executor and the beneficiaries
named in the will, of such delivery, and . . . [to] keep the same safe in his office until
proceedings may be had for the probate thereof. . . .” Id. § 41-5-2 (2019). According to
West Virginia Code § 41-5-3 (2019), “[i]f any party desires to contest such will he may
by application to the court or the clerk thereof in vacation have a rule against the executors
and all the beneficiaries named in the will, returnable to the court . . . .” (Emphasis added).
13
After a will has been delivered to the clerk of the county commission, there
are two different statutory procedures for probate: probate in solemn form 14 and ex parte
probate. In this case, the ex parte probate procedure was used as set forth in West Virginia
Code § 41-5-10 (2019), which is the “usual method followed in this State.” Winzenrith’s
Will, 133 W. Va. at 276, 55 S.E.2d at 902. Specifically, West Virginia Code § 41-5-10
provides:
At, or at any time after, the production of a will, any
person may move the county court [now county commission]
having jurisdiction, or the clerk thereof in the vacation of the
court, for the probate of such will, and the court or the clerk
thereof, as the case may be, may, without notice to any party,
proceed to hear and determine the motion and admit the will to
probate, or reject the same. The probate of, or refusal to
probate, any will, so made by the clerk, shall be reported by
him to the court at its next regular session, and, if no objection
be made thereto, and none appear to the court, the court shall
confirm the same. If any person entitled to contest the probate
of a will shall appear before the clerk of the court before a
decision is made by him admitting or refusing to admit the will
to probate, or before the county court [now county
commission] at any time before it has made an order
confirming the action of the clerk in admitting or refusing to
admit such will to probate, or before such court in any ex parte
proceeding to probate a will made in the court in the first
instance before it has made an order admitting or refusing to
admit the will to probate, and file a notice of contest of the
probate of the will, stating distinctly the several grounds of
objection, process on such notice shall be issued and the
14
See W. Va. Code § 41-5-5 (2019) (providing procedure for probate in solemn
form which requires the filing of “a petition duly verified by affidavit, stating when and
where the testator died, his last place of residence, the nature of his estate, the relationship
to decedent and place of residence of each of his heirs at law and distributees, surviving
wife or husband, and each of the beneficiaries of the will.”); see also W. Va. Code §§ 41-
5-6 to -9 (2019) (concerning hearing, decision and appeal of probate order for probate in
solemn form).
14
proceeding thereafter shall be heard before the county court
[now county commission] only, and in all respects in the same
manner as if the will had been offered for probate in solemn
form; and any judgment entered by the county court [now
county commission] on such proceeding shall have the same
effect, and an appeal shall lie therefrom, as if the original
proceeding to probate the will had been made in solemn form:
Provided, that the only notice to the parties interested or
process against them required in such case shall be upon the
notice of contest. In all ex parte proceedings in which there is
no contest, the action of the clerk in admitting the will to
probate, when confirmed by the court, shall have the same
effect in all respects as if the will had been admitted to probate
and record by the county court [now county commission]in the
first instance.
(Emphasis added). 15
The Legislature has established a specific statutory process for individuals,
such as the heirs at law in the instant case, to challenge a will before the county clerk and
the county commission admit said will to probate, by filing “a notice of contest of the
probate of the will, stating distinctly the several grounds of objection[.] . . .” Id. The filing
of this notice triggers the issuance of “process on such notice” and “the proceeding
thereafter shall be heard before the . . . [county commission] only, and in all respects in the
same manner as if the will had been offered for probate in solemn form[.]” Id. This statute
15
See W. Va. Code 41-5-17 (2019)(“Every will or authenticated copy of a will,
when admitted to probate under the provisions of this article, shall be recorded by the clerk
of the county court [now county commission], and indexed by him in a general index of
wills, and every such will or copy when recorded shall remain in his office except when
removed therefrom by the order of a court, or under a subpoena duces tecum, or otherwise
as provided by law.”).
15
does not contain any language authorizing a fiduciary supervisor to challenge the validity
of a will after it has been admitted to probate.
A person who was not a party to the ex parte proceeding set forth in West
Virginia Code § 41-5-10 may challenge a will by following the procedure set forth in West
Virginia Code § 41-5-11 (2019). This statute provides:
After a judgment or order entered as aforesaid in a
proceeding for probate ex parte, any person interested who was
not a party to the proceeding, or any person who was not a party
to a proceeding for probate in solemn form, may proceed by
complaint to impeach or establish the will, on which complaint,
if required by any party, a trial by jury shall be ordered, to
ascertain whether any, and if any, how much, of what was so
offered for probate, be the will of the decedent. The court may
require all other testamentary papers of the decedent to be
produced, and the inquiry shall then be which one of all, or how
much of any, of the testamentary papers is the will of the
decedent. If the judgment or order was entered by the circuit
court on appeal from the county commission, such complaint
shall be filed within six months from the date thereof, and if
the judgment or order was entered by the county commission
and there was no appeal therefrom, such complaint shall be
filed within six months from the date of such order of the
county commission. If no such complaint be filed within the
time prescribed, the judgment or order shall be forever binding.
Any complaint filed under this section shall be in the circuit
court of the county wherein probate of the will was allowed or
denied.
Id.
As was the case with the statutes examined supra, the statutory language
establishing the ex parte will probate procedure is devoid of any authorization for a
fiduciary supervisor to undertake a unilateral, independent investigation into the validity
16
of a will already admitted to probate. See Hose v. Estate of Hose, 230 W. Va. 61, 66-67,
736 S.E.2d 61, 66-67 (2012) (determining that statute did not give fiduciary supervisor the
authority to reject a claim against an estate, but the statute required a claim be objected to
by specific persons, which did not include the fiduciary supervisor, and that once a proper
objection was made, the claimant had to be given an opportunity to provide additional
information to prove a claim at a hearing). Therefore, we now hold that neither the
provisions establishing the ex parte will probate procedure, West Virginia Code §§ 41-5-
10 to -11 (2019), nor the provisions creating the office of fiduciary supervisor, West
Virginia Code §§ 44-3A-1 to -44 (2019 & Supp. 2021), provide statutory authority for a
fiduciary supervisor to undertake an independent investigation into the validity of a will
that has been admitted into probate.
In this case no one – neither the heirs at law nor any other person – filed any
objection or challenge to the Will, either before it was accepted into probate and confirmed
by the county commission or afterward under the ex parte will probate procedures. See id.
As set forth supra, after the Will was admitted to probate and duly recorded, the fiduciary
supervisor had no legal authority to begin his own independent investigation into the
validity of the Will. More specifically, in the absence of a proper challenge, and where the
Will had already been entered to probate and duly recorded, he had no legal authority to
contact the witnesses in order to have them explain or clarify the substance of their
respective affidavits; no legal authority to instruct the petitioner that he had the burden of
proving that the Will was wholly in the decedent’s handwriting; no legal authority to direct
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that the petitioner respond to him within twenty days; and no legal authority to draft an
order declaring the Will void and submit said order for entry by the county commission. In
each of these actions the fiduciary supervisor was acting wholly outside the scope of his
statutory authority.
2. County Commission
The petitioner also argues that the circuit court erred in failing to reverse the
county commission’s decision declaring the Will to be void. The petitioner contends that
the Legislature has not provided a mechanism for a county commission to void a will
unilaterally and without a challenge by the decedent’s children or heirs-at-law. We agree
and easily resolve this issue.
As previously discussed supra, West Virginia Code § 41-5-10 provides for a
county commission to confirm the probate of a will accepted by the clerk unless an
objection is made or an objection “appears to the county commission.” Id. In this case,
because there was no objection made, and none appeared to the county commission, it
confirmed the county clerk’s decision to admit the Will to probate as follows: “on February
4, 2016, the Marion County Commission admitted a Holographic Will of Oras D. Dye to
probate, based upon the affidavits of Yvonne Shaw and Alicia Healey. The Will was
recorded in Will Book No. 147, at page 228.” Once the county commission admitted the
Will to probate, its work was complete. Thereafter, although a complaint could have been
filed pursuant to West Virginia Code § 41-5-11 to “impeach or establish the will,” the
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action lies in circuit court, not with the county commission. Id. Accordingly, we now hold
that there is no mechanism contained in the ex parte probate procedure set forth in West
Virginia Code § 41-5-10 (2019) and West Virginia Code § 41-5-11 (2019) that allows a
county commission to rescind its prior order admitting a will to probate.
Simply stated, in the instant case, the county commission lacked the legal
authority to void the Will – a lack of legal authority which was also fatal to its recission of
the petitioner’s appointment as the executor of the Estate of Oras D. Dye. The county
commission’s order invalidating the Will was void and unenforceable in its entirety, and
therefore the circuit court committed reversible error, as a matter of law, in denying the
petitioner’s appeal.
B. Lack of Due Process
The petitioner argues that he did not receive due process in the procedures
utilized by both the fiduciary supervisor and the county commission. Specifically, he
asserts that the fiduciary supervisor submitted the proposed order voiding the Will to the
county commission ex parte, affording him no notice of its submission and no opportunity
to be heard. Further, he argues that both the fiduciary supervisory and the county
commission lacked the authority to invalidate the Will. Conversely, the county
commission argues that the circuit court correctly found that the April 25, 2016, letter from
the fiduciary supervisor to the petitioner was adequate notice and the petitioner simply
failed to respond.
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The unilateral, independent, and wholly unauthorized investigation
undertaken by the fiduciary supervisor in this case not only trampled the due process rights
that would have been afforded the petitioner in a valid challenge by any interested party to
the Will, but also destroyed any semblance of the neutrality required by a fiduciary
supervisor, who is an agent of the county commission, not of any interested parties to the
Will. First, it is undisputed that petitioner did not receive notice from either the fiduciary
supervisor or the county commission that a proposed order invalidating the Will had been
prepared by the former and submitted for entry by the latter. In this regard, we are
unpersuaded that the April 25, 2016, letter from the fiduciary supervisor constituted notice,
as it failed to provide a specific date for a hearing in which the petitioner would be given
an opportunity to be heard prior to a decision being made on the validity of the Will. See
W. Va. Code § 41-5-10. Indeed, despite the fiduciary supervisor giving the petitioner
twenty days in which to respond to the letter, there was no action taken in regard to the
Will for over five months – and that action was taken in the absence of any challenge to
the Will ever having been filed. Succinctly stated, the April 25, 2016, letter, which clearly
was sent to the petitioner as part of the fiduciary supervisor’s independent investigation,
was not proper notice, did not provide an appropriate opportunity to be heard, and therefore
failed to afford the petitioner due process. See generally Estate of Hose, 230 W. Va. 61 at
67, 736 S.E.2d at 67 (“The general scheme of the probate statutes reflect[s] a legislative
intent that a claimant be given notice and an opportunity to be heard before a claim is
rejected on its merits.”); see also W. Va. Code § 41-5-11 (providing for a trial by jury).
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Second, the April 25, 2016, letter is indicative of a much larger problem in
this case: by ignoring the statutory ex parte will probate procedures, the fiduciary
supervisor took on the role of advocate for the heirs at law and abandoned the neutrality
and fairness intended by the Legislature in the administration of probate matters. This
affected the entire probate process in this case. By becoming an independent investigator
and advocate for the decedent’s children, the fiduciary supervisor denied the petitioner
notice and an opportunity to be heard, which are his statutory and constitutional rights.
Further, the fiduciary supervisor devised, pursued, and ultimately resolved a nonexistent
will contest, submitting an order to the county commission that handed the heirs at law a
victory in a challenge they never brought. Moreover, the county commission also denied
the petitioner his right to due process when it entered an ex parte order prepared and
submitted by its agent, the fiduciary supervisor, without affording the petitioner notice and
an opportunity to be heard.
Both the fiduciary supervisor and the county commission’s actions were
wholly unauthorized by statute and done in a manner that deprived the petitioner due
process of law. Accordingly, the circuit court erred in upholding the county commission’s
order in this regard.
IV. Conclusion
For the foregoing reasons, we reverse the circuit court’s July 1, 2020, order
denying the petitioner’s appeal from the order entered October 5, 2016, by the respondent
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Marion County Commission, declaring the Will of Oras Dye, the decedent herein, to be
void and rescinding the petitioner’s appointment as Executor of the Estate of Oras Dye.
The case is remanded to the circuit court for entry of an order declaring that the Will of
Oras Dye was admitted to probate as a valid will on February 4, 2016, reinstating the
petitioner as the Executor of the Estate of Oras D. Dye, and for any additional proceedings
consistent with this opinion.
Reversed and remanded with directions.
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