In re Appeal of the Estate of Elaine A. Holbrook Late of Salisbury, Vermont (David Holbrook, Cheryl Holbrook and Charles Holbrook III, Appellants)

2016 VT 13, 140 A.3d 788, 201 Vt. 254, 2016 Vt. LEXIS 12, 2016 WL 362762
CourtSupreme Court of Vermont
DecidedJanuary 29, 2016
Docket2015-014
StatusPublished
Cited by7 cases

This text of 2016 VT 13 (In re Appeal of the Estate of Elaine A. Holbrook Late of Salisbury, Vermont (David Holbrook, Cheryl Holbrook and Charles Holbrook III, Appellants)) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of the Estate of Elaine A. Holbrook Late of Salisbury, Vermont (David Holbrook, Cheryl Holbrook and Charles Holbrook III, Appellants), 2016 VT 13, 140 A.3d 788, 201 Vt. 254, 2016 Vt. LEXIS 12, 2016 WL 362762 (Vt. 2016).

Opinion

Eaton, J.

¶ 1. This appeal stems from a disagreement among siblings regarding the allowance, validity, and interpretation of the will of their mother, Elaine A. Holbrook (testator). David and Cheryl Holbrook, two of testator’s six children and co-executors of her estate, joined by Charles Holbrook III (grand *257 son), one of testator’s seven grandchildren (collectively, appellants), appeal two decisions of the Addison Superior Court, Civil Division, in favor of appellee Amy Holbrook, testator’s daughter. On appellee’s motion, the civil division dismissed appellants’ claims that the probate division both improperly allowed the will and concluded that the will is not conditional. 1 The civil division then granted summary judgment in favor of appellee on appellants’ remaining claim that the will was unambiguous in creating a thirteen-part devise, rather than a six-part devise. We affirm the civil division’s conclusions that the will was properly allowed and that it is unambiguous, but reverse and remand on the issue of whether the will can be considered conditional.

¶ 2. The relevant facts are as follows. Testator died on February 3, 2013. She was survived by six children, including appellant-executors, appellee, and seven grandchildren, including appellant-grandson. 2 Testator did not have a surviving spouse.

¶ 3. On January 22, 2003, testator signed a three-page handwritten document entitled “My Last Will & Testament.” 3 The will is in the form of a letter and is addressed “To all my children.” The first sentence of the document — and the main source of contention between testator’s children — reads as follows: “In the event that I don’t make it through surgery on Thurs the 23rd of Jan. ’03, I wish to bequeath you all of the property & personal belongings divided equally to the six of you & to the seven grandchildren.” Testator did, in fact, survive the surgery in January of 2003 and lived for ten more years before her death in 2013.

¶ 4. The will named two of testator’s children as co-executors of her estate: appellant-executors David and Cheryl. On February 13, *258 2013, ten days after testator’s death, appellant-executors submitted to the Addison Superior Court, Probate Division the will, together with a petition to open testator’s estate, which they estimated to include real estate valued at $125,000 and personal property valued at $25,000, for a total estate value of $150,000. All six of testator’s children consented to the allowance of the will, the petition to open the estate, and the appointment of appellant-executors as executors of the estate.

¶ 5. Also on February 13, 2013, appellant-executors filed a probate form indicating all “interested persons,” which listed all six of testator’s children and all eight of her grandchildren, including appellant-grandson, Raymond, who had pre-deceased testator, and Elliot, who was born after the will was executed.

¶ 6. On February 26, 2013, the probate division, based on the consent of the heirs at law and without a hearing, issued an order allowing the will. That same day, the probate division sent a notice to all those listed as “interested persons,” notifying them that the proposed will was allowed and that appellant-executors had formally been appointed by the court as co-executors of the estate. No timely appeal of the order of allowance was filed.

¶ 7. On March 16, 2013, appellant-executors began to inventory testator’s estate and discovered $319,914 in cash hidden in testator’s house. None of this money had been reflected in the original petition and was apparently unknown to any of testator’s children. On March 21, 2013, appellant-executors filed the inventory list with the probate division, reflecting that the value of the estate had increased from $150,000 to $509,412.88.

¶ 8. On April 16, 2013, appellee filed a motion in the probate division seeking clarification of the will. Several days later, appellant-executors filed a request for a hearing to determine whether the document that the probate division allowed as testator’s will was in fact testator’s last will and testament, claiming that the so-called will did not comply with the execution requirements of Vermont law. On July 31, 2013, before the court had scheduled a hearing, appellant-executors filed a second motion, this one challenging the allowance of the will on the grounds that (1) the probate division had not complied with the hearing requirements by failing to notify the grandchildren prior to allowance; (2) the will was ambiguous; and (3) the will was an ineffective conditional will.

*259 ¶ 9. On August 29, 2013, the probate division denied the motion to challenge the allowance of the will as to the first and third grounds, deferring the construction issue until a ruling on appel-lee’s motion for clarification. The probate division concluded that appellant-executors lacked standing to raise the issue of notice and that their challenge to the validity of the will was untimely.

¶ 10. On September 18, 2013, appellant-grandson filed his own motion challenging the allowance of the will, making precisely the same improper-notice argument as appellant-executors made in their July 31, 2013 motion.

¶ 11. On December 12, 2013, the probate division issued a decision, ruling that (1) the will was properly allowed despite the lack of notice to testator’s grandchildren; (2) the will was not ambiguous and created a thirteen-part devise of equal shares to the six children and seven grandchildren; and (3) the will was not conditional. Appellants timely appealed this decision to the superior court, and appellee moved to dismiss the appeal for lack of subject matter jurisdiction. On May 16, 2014, the civil division granted appellee’s motion to dismiss in part, concluding that it did not have subject matter jurisdiction over the issue of improper notice or whether the will was conditional. The civil division reasoned that appellants had failed to make a timely objection challenging either issue and that the issue of whether the will was conditional represented a collateral attack on the probate division’s final order. The civil division did not dismiss appellants’ claim that the will was ambiguous, however, concluding that it had jurisdiction to consider the probate division’s construction of the will. Thereafter, appellee moved for summary judgment on the issue of ambiguity. On November 7, 2014, the civil division granted summary judgment in appellee’s favor, concluding that there was no dispute as to any material fact and that appellee was entitled to judgment as a matter of law because the will unambiguously created a thirteen-part devise.

¶ 12. This appeal followed, with appellants raising two claims of error. First, appellants argue that the civil division erred in finding that it did not have subject matter jurisdiction over grandson’s September 2013 motion or appellant-executors’ July 13 motion because both motions were untimely.

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2016 VT 13, 140 A.3d 788, 201 Vt. 254, 2016 Vt. LEXIS 12, 2016 WL 362762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-the-estate-of-elaine-a-holbrook-late-of-salisbury-vermont-vt-2016.