Dye v. County Commission of Marion County

• Court: West Virginia Supreme Court
• Decided: October 28, 2021
• Docket: 20-0602
• Status: Published

Opinion

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

17 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

18 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.

19 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).

20 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

21 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.