In re the Will of Lamparter , 126 N.C. App. 593 ( 1997 )

ARNOLD, Chief Judge.

Respondents first argue that the trial court erred in denying their motion for a directed verdict at the close of the caveators’ evidence. They contend that the holographic writing may not, as a matter of law, be admitted to probate because it is not valid on its face. We disagree.

There are three statutory requirements to establish a valid holographic will: It must be (1) written entirely in the handwriting of the testator, (2) subscribed by the testator, or with his name written in or on the will in his own handwriting, and (3) found after the testator’s death among his valuable papers or effects or placed by him in the possession of another person for safekeeping. See N.C. Gen. Stat. § 31-3.4 (1984). The first two elements are uncontested in this case.

In addition to the statutory requirements for a holographic will, our Supreme Court has held that it is necessary to establish testamentary intent:

Before any instrument can be probated as a testamentary disposition there must be evidence that it was written animo testandi, or with testamentary intent. The maker must intend at the time of making that the paper itself operate as a will, or codicil.

In re Will of Mucci, 287 N.C. 26, 30, 213 S.E.2d 207, 210 (1975). See also Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826 (1987).

With regard, moreover, to holographic instruments, the necessary animo testandi must appear not only from the instrument itself and the circumstances under which it was made, but also from the fact that the instrument was found among the deceased’s valuable papers after his death ....

Mucci, 287 N.C. at 30, 213 S.E.2d at 210; G.S. § 31-3.4. Respondents argue both that (1) no testamentary intent can be inferred from the holographic writing on its face and (2) the holographic writing was not found after decedent’s death among his valuable papers. We find both arguments unavailing.

The holographic writing in this case expressly states in decedent’s handwriting:

I, William Smith Lanyon Lamparter, . . . being of sound and disposing mind and memory, do hereby declare, publish and make known, this as my Last Will and Testament, thereby revoking and making void any and all Wills and Testaments by me heretofore made and now disposing of the worldly and material goods of which God hath made me Steward ....

Respondents argue that circumstances surrounding the making of the holographic writing render this language ineffective, including evidence that the writing is not neatly and meticulously set forth, as was decedent’s habit, the writing is not signed and dated, it does not dispose of decedent’s entire estate, it contains inconsistent bequests, and decedent never showed the document to any witness indicating that it was his completed last will and testament.

These surrounding circumstances do not necessarily negate the express testamentary language in the holographic writing, but they at least render the instrument on its face equivocal as to testamentary intent.

Where 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 valuable papers of the deceased the animo testandi issue is for the jury and parol evidence relevant to the issue may be properly admitted.

Mucci, 287 N.C. at 31, 213 S.E.2d at 211. In this case, there was some evidence that the holographic writing was found among decedent’s valuable papers. Therefore, the issue of testamentary intent was one for the jury, and the trial court did not err in denying respondents’ motion for directed verdict on this basis.

We likewise reject the caveators’ cross-assignment of error in which they contend that the holographic writing constitutes a valid holographic will on its face. They argue that the trial court erred in denying their motion for a directed verdict because the holographic writing meets all of the statutory elements for a valid holographic will, and it bears testamentary intent on its face. As we noted above, evidence of the surrounding circumstances render the holographic writing equivocal on the issue of intent, and the question was one for the jury. Therefore, it was not error for the trial court to deny the caveators’ motion for a directed verdict.

Respondents next argue that the trial court committed reversible error in allowing the caveators to testify about conversations they had with decedent regarding his will. This issue presents us with a case of first impression. We must determine the extent to which testimony regarding a decedent’s testamentary intent is admissible to establish a valid holographic will under N.C. Gen. Stat. § 31-10(b) (1984).

Rule 601 of the North Carolina Rules of Evidence, also known as the Dead Man’s Statute, disqualifies an interested person from testifying “in his own behalf or interest. . . against the executor, administrator or survivor of a deceased person . . . concerning any oral communication between the witness and the deceased person[.]” N.C. Gen. Stat. § 8C-1, Rule 601(c) (1992). In an apparent exception to Rule 601, however, G.S. § 31-10(b) provides:

A beneficiary under a holographic will may testify to such competent, relevant and material facts as tend to establish such holographic will as a valid will without rendering void the benefits to be received by him thereunder.

Respondents contend that G.S. § 31-10(b) “was not enacted to permit beneficiaries under a holographic will to testify in violation of the Dead Man’s Statute,” but instead permits testimony to establish only the three statutory requirements for a holographic will set forth in G.S. § 31-3.4. They argue that because testamentary intent is not one of the three statutory requirements for a valid holographic will, the caveators’ testimony regarding conversations with decedent about his testamentary intent should have been excluded pursuant to Rule 601.

The caveators correctly counter, however, that while testamentary intent is not a statutory requirement for a holographic will, it is nevertheless a necessary element to prove the validity of a holographic will. See Mucci, 287 N.C. at 30, 213 S.E.2d at 210. As we noted above, when a holographic instrument on its face is equivocal on the question of whether it was written with testamentary intent, and the statutory requirements are otherwise met, the testamentary intent issue “is for the jury and parol evidence relevant to the issue may be properly admitted.” Id. at 31, 213 S.E.2d at 211. Intent to make some future testamentary disposition, however, is not sufficient to show intent that a document itself operate as a will. Id. at 30, 213 S.E.2d at 210.

Clearly, the witnesses’ testimony as to conversations they had with decedent about specific bequests he planned to make in a new will is not sufficient alone to show decedent’s intent that the holographic writing itself operate as a will. See id. However, we find such testimony competent, relevant, and material under G.S. § 31-10(b) as evidence of the circumstances under which the holographic writing was made.

We hold that such testimony, coupled with Richard Berry’s testimony that decedent told him on Christmas Eve of 1991 that he had finished writing his new will, is competent and probative on the issue of decedent’s intent that the holographic will operate as decedent’s last will and testament. Accordingly, the trial court did not err in allowing the caveators to testify about conversations they had with decedent regarding his will.

No error.

Judge COZORT concurs. Judge WYNN dissents with a separate opinion.