In re: Hendrix ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-281
Filed: 15 May 2018
Forsyth County, No. 16-E-1168
IN THE MATTER OF THE WILL OF MARGUERITE TRAVERSE HENDRIX, Amy
Hendrix Weber and Maureen Traverse Collins, Petitioners
v.
Janet Martin Tantemsapya, et. al., Respondents.
Appeal by caveators from order entered 10 October 2016 by Judge Susan E.
Bray in Superior Court, Forsyth County. Heard in the Court of Appeals 6 September
2017.
The Law Offices of Jason E. Taylor, by Gary W. Jackson and Lawrence B.
Serbin, for petitioners-caveators-appellants.
Bell, Davis & Pitt, P.A., by William K. Davis, Alan M. Ruley, and Andrew A.
Freeman, for respondent-appellees.
STROUD, Judge.
The Caveators appeal from the trial court’s order dismissing their will caveat
under North Carolina Rule of Civil Procedure 12(b)(6). Because the alleged codicil
upon which the caveat was based is not a valid holographic codicil on its face, we
affirm.
I. Background
IN RE: HENDRIX
Opinion of the Court
On 26 July 2016, Amy Hendrix Weber and Maureen Traverse Collins,
caveators, filed a caveat to the will of Marguerite Traverse Hendrix dated 1
September 2011 (“2011 Will”). The Caveators are two of about twelve named
beneficiaries under the 2011 Will. Ms. Hendrix died on 7 June 2016, and her will
entered probate on 24 June 2016. Ms. Weber and Ms. Collins alleged that portions
of the 2011 Will should be set aside because the decedent had executed a holographic
codicil to it on 13 November 2012. The Caveators alleged that the decedent had
revoked some provisions of the 2011 Will and modified others, including removing
Brenner Children’s Hospital as a beneficiary. A copy of the alleged codicil was
attached to the complaint.
The alleged codicil was a copy of the typewritten 2011 Will with some
handwritten notations and markings through some portions of the typewritten text.
At the top of the first page of the alleged codicil is a handwritten note “UPDATE Nov
13, 2012[,]” and under this a mark which could be the decedent’s initials. After the
date, the handwritten notations are nearly illegible, but we will assume for purposes
of considering the motion to dismiss that they say what the Caveators alleged. The
caveat does not include any allegation regarding when and where the alleged codicil
was found.
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IN RE: HENDRIX
Opinion of the Court
Brenner Children’s Hospital moved to dismiss under North Carolina Rule of
Civil Procedure 12(b)(6).1 On 10 October 2016, the trial court granted Brenner
Children’s Hospital’s motion to dismiss the caveat with prejudice. The Caveators
appeal.
II. Motion to Dismiss
On appeal, the Caveators argue that the trial court erred in dismissing their
caveat under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The
Caveators contend that Rule 12(b)(6) is not applicable to caveat proceedings, but even
if it were, they contend the alleged codicil shows the decedent’s intent and meets the
statutory requirements for a holographic codicil, so they “are entitled to have a jury
hear evidence that the requirements for a valid holographic instrument are satisfied.”
A. Applicability of Rule 12(b)(6) to Caveat
Caveators argue that a caveat cannot be dismissed because North Carolina
courts have historically required that all caveat issues be tried by a jury. The
Caveators cite several cases stating the general proposition that “‘on the issue raised
by caveat, as provided by the statute, the issue must be tried by a jury and not by the
judge.’ In re Hine’s Will, 228 N.C. 405, 410, 45 S.E.2d 526, 529 (1947)[.]” But the
Rules of Civil Procedure still apply to caveat proceedings. See generally In re Will of
1 Other named beneficiaries under the 2011 Will also filed responses, including a motion to
dismiss, but the trial court’s order was based upon Brenner Children’s Hospital’s motion and only the
Caveators and Brenner Children’s Hospital have filed briefs on appeal.
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IN RE: HENDRIX
Opinion of the Court
Durham, 206 N.C. App. 67, 76, 698 S.E.2d 112, 120-21 (2010). In Will of Durham,
this Court discussed the applicability of the Rules of Civil Procedure in estate
proceedings at length, noting that the caveator’s argument that the Rules of Civil
Procedure did not apply “is understandable given certain language that appears in
our prior decisions,” but determined that North Carolina Rule of Civil Procedure 11
applied to estate proceedings:
The North Carolina Rules of Civil Procedure govern
the procedure in all actions and proceedings of a civil
nature except when a differing procedure is prescribed by
statute. The phrase all actions and proceedings of a civil
nature is inclusive of, but not exclusive to, civil actions; the
phrase is broad and encompasses different types of legal
actions, not solely those initiated with a complaint.
According to N.C. Gen. Stat. § 1–393, the Rules of Civil
Procedure and the provisions of this Chapter on civil
procedure are applicable to special proceedings, except as
otherwise provided. A proceeding for the revocation of
previously-issued letters testamentary initiated pursuant
to N.C. Gen. Stat. § 28A–9–1 constitutes a special
proceeding. As a result, an estate proceeding is a
proceeding of a civil nature in which a Superior Court
Judge has the authority to impose sanctions pursuant to
N.C. Gen. Stat. § 1A–1, Rule 11.
206 N.C. App. at 76-77, 698 S.E.2d at 120–21 (citations, quotation marks, ellipses,
and brackets omitted).
Although Durham specifically addressed Rule 11, see id., and not Rule 12,
other cases have applied other Rules of Civil Procedure to estate proceedings,
including dismissal by summary judgment under Rule 56 and directed verdict under
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IN RE: HENDRIX
Opinion of the Court
Rule 50. See, e.g., Matter of Will of Allen, ___ N.C. App. ___, 801 S.E.2d 380 (2017),
disc. review allowed, ___ N.C. ___, ___ S.E.2d ___ (2018) ; see also In re Will of Mason,
168 N.C. App. 160, 165-66, 606 S.E.2d 921, 924-25 (2005) (noting that a caveat may
be addressed by summary judgment and directed verdict). Dismissal upon summary
judgment or directed verdict is also a disposition without a jury trial, so there is no
absolute requirement for a jury trial in a will caveat. See generally id. Will of Allen,
explained, “A caveat is an in rem proceeding and operates as an attack upon the
validity of the instrument purporting to be a will. Summary judgment may be entered
in a caveat proceeding in factually appropriate cases.” Will of Allen, ____ N.C. App.
at ___, 801 S.E.2d at 383 (citations, quotation marks, and brackets omitted). We
therefore conclude that Rule 12(b)(6) applies to caveat proceedings just as it does to
other civil proceedings.
B. Sufficiency of Caveat
The standard of review of an order granting a
12(b)(6) motion is whether the [caveat] states a claim for
which relief can be granted under some legal theory when
the [caveat] is liberally construed and all the allegations
included therein are taken as true. . . . On appeal of a
12(b)(6) motion to dismiss, this Court conducts a de novo
review of the pleadings to determine their legal sufficiency
and to determine whether the trial court’s ruling on the
motion to dismiss was correct.
Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428–29 (2007) (citations and
quotation marks omitted).
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IN RE: HENDRIX
Opinion of the Court
The Caveators argue that they “expect that Appellees will contest the 2012
Codicil on the grounds that the instrument is not entirely in Decedent’s handwriting
and that those portions which are type-written are essential to discern the meaning
of the handwritten words.” And appellee does make exactly this argument. The
alleged holographic codicil is decedent’s 2011 Will with some handwritten notations.
The Caveators claim that the notations clearly show the decedent’s intent so they
should be given effect, even if they must be read in conjunction with the typewritten
document to have any meaning, claiming that appellee’s argument is based “upon a
hyper-technical interpretation of the applicable statute.” Perhaps appellee’s
argument is “hyper-technical[,]” but it is also the law as set forth by both this Court
and our Supreme Court. See Will of Allen, ___ N.C. App. at ___, 801 S.E.2d at 383–
85.
Will of Allen also addressed handwritten notations on a typewritten will which
the decedent had previously executed, and this Court summarized the “Requirements
for a Holographic Codicil to a Typewritten Will”:
A codicil is a supplement to a will, annexed for the
purpose of expressing the testator’s after-thought or
amended intention. The 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.
The statutory requirements for partial revocation or
change to a will are found in N.C. Gen. Stat. § 31-5.1 (2015),
which states in relevant part that a written will, or any
part thereof, may be revoked only (1) by a subsequent
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IN RE: HENDRIX
Opinion of the Court
written will or codicil or other revocatory writing executed
in the manner provided herein for the execution of written
wills. The manner provided for the execution of a
holographic will is set out in N.C. Gen. Stat. § 31-3.4 (2015),
which provides in pertinent part as follows:
(a) A holographic will is a will
(1) Written entirely in the handwriting of
the testator but when all the words appearing on a
paper in the handwriting of the testator are
sufficient to constitute a valid holographic will, the
fact that other words or printed matter appear
thereon not in the handwriting of the testator, and
not affecting the meaning of the words in such
handwriting, shall not affect the validity of the will,
and
(2) Subscribed by the testator and
(3) Found after the testator’s death among
the testator’s valuable papers or effects.
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, our appellate jurisprudence has
established specific requirements for a valid holographic
codicil to a will. N.C. Gen. Stat. § 31-3.4(a)(1) states that
the fact that other words or printed matter appear in a
holographic will not in the handwriting of the testator, and
not affecting the meaning of the words in such
handwriting, shall not affect the validity of the will.
Goodman applied this rule to a holographic codicil to a
typewritten will:
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
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IN RE: HENDRIX
Opinion of the Court
give meaning to the words used, the
instrument will not be upheld as a holograph
will.
In Goodman, the testatrix added and signed the following
handwritten words to her typewritten will: “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.” Because the effect of
these additions to the testatrix’s will could be determined
without reference to any other part of her will, our
Supreme Court held that the handwritten notes on the
testatrix’s will constituted a valid holographic codicil:
The additional words placed by her on this
will written in her own handwriting and
again signed by her are sufficient, standing
alone, to constitute a valid holograph will;
that is, the legacy of $ 50 to Burns Elkins, the
devise of one-half of her estate to Mrs.
Stamey, and the bequest of the diamond ring
to Mary Iris Goodman are sufficiently
expressed to constitute a valid disposition of
property to take effect after death.
However, 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. For example, in In re Smith’s Will, 218 N.C. 161,
10 S.E.2d 676 (1940), the decedent’s will was duly probated
as a holographic will. Thereafter, the decedent’s widow
submitted for probate a purported codicil or supplemental
will that included both typewritten and holographic
elements. Our Supreme Court held that:
The paper writing presented 6 March,
1939, was improvidently admitted to probate
in common form. An examination of the
instrument leads us to the conclusion that it
was not in form sufficient to be entitled to
probate as a holographic will. Words not in
the handwriting of the testator are essential
to give meaning to the words used.
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IN RE: HENDRIX
Opinion of the Court
Id. (emphasis in original) (citations, quotation marks, ellipses, and brackets omitted).
In Will of Allen, this Court ultimately determined,
the words of the handwritten notation are not sufficient,
standing alone, to establish their meaning. In order to
understand the notation, it is necessary to incorporate or
refer to the contents of Article IV to which the note refers.
As discussed above, our appellate jurisprudence
establishes that a holographic codicil is invalid if words not
in the handwriting of the testator are essential to give
meaning to the words used. We conclude that under
binding precedent of our Supreme Court, the handwritten
notation does not constitute a valid holographic codicil to
the will.
Id. at ___, 801 S.E.2d at 385 (citation, quotation marks, and brackets omitted).
Here, the handwritten notations are almost entirely illegible, but for purposes
of Rule 12(b)(6) review, we have assumed they say what the Caveators allege. See
Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428–29. But even if we make this
assumption as to the content of the notations, the handwritten notations are still not
sufficient, standing alone, to establish their meaning. The notations must be read
along with the typewritten provisions of the 2011 Will to have any meaning.
Accordingly,
our appellate jurisprudence establishes that a holographic
codicil is invalid if words not in the handwriting of the
testator are essential to give meaning to the words used.
We conclude that under binding precedent of our Supreme
Court, the handwritten notation does not constitute a valid
holographic codicil to the will.
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IN RE: HENDRIX
Opinion of the Court
Id.
Appellee alleges four other reasons the alleged caveat was properly dismissed,
including the lack of any allegation of where the codicil was found and a lack of a
subscription by the testator, both requirements under North Carolina General
Statute § 31-3.4 (2015) for a valid holographic will, but we need not address those
arguments since we have already determined that the caveat fails to state a valid
claim because the handwritten notations have no meaning apart from the typewritten
provisions of the 2011 Will. See N.C. Gen. Stat. § 31-3.4; see also Will of Allen, ___
N.C. App. at ___, 801 S.E.2d at 383-385. Because the handwritten notations on the
alleged holographic codicil are not sufficient standing alone to “give meaning to the
words used” id., ___ N.C. App. at ___, 801 S.E.2d at 384, the caveat fails to state “a
claim for which relief can be granted[,]” Burgin, 181 N.C. App. at 512, 640 S.E.2d at
428, and we affirm the trial court’s order.
III. Conclusion
Because the alleged holographic codicil failed to meet the requirements of
North Carolina General Statute § 31-3.4, the caveat was properly dismissed, and we
affirm the trial court’s order.
AFFIRMED.
Judges ELMORE and TYSON concur.
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