Thursday, February 16, 2012

No Peeking under the Codicil

In re Estate of Perry, 2012 VT 9 (mem.).

Wills are legal documents intended to express our final wishes—Our last chance to give a gift to our loyal friends and family—An opportunity to challenge a distant relation to spend $30 million in order to inherit $300 million. 

Given that a will is our last statement to this mortal coil, it is hardly surprising that many go through several iterations, as children, friends, and charities fall in and out of favor.  The late Kurt Vonnegut wrote a short-story about the idea of an old man, Gramp Ford, revising his will daily to keep control over his extended family and to extract benefits in the remaining here and now.  The joke is that his prized possession is a private bedroom, which the rest of the family, existing in an overcrowded world, lusts after with cutthroat abandon.

The technical word for those additions and changes that people like Gramp Ford make to their wills is codicil.  A codicil is simply an amendment to a will that alters one or more of its terms.  While wills run several pages, codicils are often single sheets, brief addendums that tweak or re-adjust the will for any number of reasons.  While codicils should be executed with the same formality as a will, they cannot stand on their own as they lack many of the details that make up a will.  At the same time, a will with a codicil cannot be read apart from the codicil because the later modifies the former, usually in a substantial manner.

Today’s case is, for at least 3/4ths of decedent’s children, an abject lesson in just how crucial it is to read a codicil with a will.

Decedent passed away in May 2009.  He left a wife and four adult children.  In July, the widow filed a petition with the probate court to allow the decedent’s will.  This is the first step in a formal process of settling an estate.  Before the probate court could rule, the three sons filed a motion to continue to give interested parties an opportunity to consent to the will and to consider a two-page codicil found amongst the decedent’s papers, which purported to divide ownership of a trust, originally left just to the daughter, equally between the four children. 

The probate court agreed and set a hearing for late August.  Before that hearing all of the interested parties filed an agreement consenting to the probate court’s jurisdiction and admitting the will and any codicils attached to it. 

The problem is that no one attached the two page codicil, and the probate court accepted the motion and allowed the will. 

Eight months later, Decedent’s three sons got around to raising the issue of the codicil and seeking its acceptance by the court.  Sister’s attorney and the administrator of the estate sought to block this action as untimely. 

Here is the legal nitty-gritty.  When a will is allowed by a probate court, the act is considered a final and appealable decision.  If you think the court admitted an incorrect or incomplete will, you have 30 days to appeal that decision or it is forever waived.  In this case, the brothers failed to appeal the decision to admit the will without the codicil, and the appeal period lapsed. 

Realizing that the decision reflected an honest mistake and natural confusion around the time of the decision, the probate court had pity on the brothers and allowed them to raise the issue.  Sister and administrator appealed, but the trial court agreed with the probate court. 

On second appeal to the SCOV, the brothers are the ones that are not so lucky.  The SCOV rejects the leniency granted by the trial and probate courts and sticks to the formal rules of appeals.  This is fatal to the brothers’ cause.  Because they did not appeal in a timely manner, their codicil argument is lost.  The SCOV notes that the brothers needed to raise the issue at the time the will was admitted, and their failure to do so waived the issue forever. 

For the brothers, this is game over.  The SCOV reverses the trial court and rules that the lower court may not consider the codicil as a matter of law. 

So Pa’s possible last wishes are tossed aside, and his second-to-last wishes take center stage.  It is the equivalent of Gramp Ford giving sister the bedroom and dropping dead before he could change it again.

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