Saturday, April 8, 2017

Will be Conditional or Not

In re Holbrook, 2017 VT 15

By Thomas M. Kester

Tom Sawyer watched his own funeral. 

But Dr. Alfred Nobel most likely read his own obituary in April 1888. How was that possible? Alfred’s brother, Ludvig, died in Cannes, France in April 1888 and the French newspapers mistakenly thought the deceased “Nobel” to be the more famous one (talk about fake news). This journalistic specter of death is bad on its own, but the French newspapers’ headlines would have stopped Alfred Noble cold in his tracks. 

One in particular proclaimed: Le marchand de la mort est mort (“The merchant of death is dead”). For those who don’t know, Alfred Nobel was the inventor of dynamite. Alfred thought himself a great inventor, as he believed his invention was for betterment of humankind—like to move earth for monumental construction projects such as the Panama Canal. The mistaken obituary may have led Alfred Nobel to rethink his life’s work and its lasting impression on the world. He changed his will sometime after April 1888 and, upon his real death on December 10, 1896, his fortune funded and ultimately created the Nobel prizes. Scholars on this subject don’t know for sure if reading his own obituary and the dissonance between its macabre reflection and his own personal views caused Alfred Nobel to use his will to create the Nobel prizes—a symbol of having accomplished extraordinary and noble acts in one’s life. 

Why I am talking about this? Because I'm basically a squirrel with ADD. But also because just as conditions can spur one to change a will, wills can change based on conditions. Conditional (or contingent) wills are just that—conditional (if certain event happens, then do this action), as opposed to “absolute” wills (do this action). The law accommodates decisions based upon one’s impending death, for example, causa mortis gifts1 and nuncupative wills.2

This case is the second in the Holbrook series. Recapping from last time: the SCOV ordered, among other things, that the case be remanded for consideration of whether or not the will was conditional or absolute. On January 22, 2003, the testator (person making a will) signed a will that said, in part:
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 and personal belongings divided equally to the six of you & to the seven grandchildren.

Testator did, in fact, survive the surgery in January 2003 and lived for ten more years before her death in 2013.

The co-executors and one of the other kids filed cross-motions for summary judgment, and the trial court ruled in favor of Amy (the other kid) that the will was not conditional but absolute. The trial court observed that certain actions were suggestive of conditional (like not telling the family about the will and burying it a stack of papers) and other actions were suggestive of absolute (like where the will was found was the testator’s office and people spent time to find this will because they believed it existed).

As a general matter, making next of kin play an intense game of hide-and-go-seek for a will is disadvantageous for many reasons (unknowingly, the testator may be the champion at hiding stuff). I am not saying you have to frame your will above the fireplace or post it on the fridge next to the weekly grocery list, but a balance between safekeeping and accessibility can be struck.

Back to the case: while viewing the “conflicting evidence as ‘ambiguous’” and neither position “more compelling than the other,” the trial court concluded the will as being absolute due to “the presumption against intestacy” controlling. If you die partially or completely intestate (i.e, without a will) then the state’s intestacy laws usually kick in. But what a testator wants and what the intestacy laws say may be at odds with each other.

According to the SCOV:
To determine whether the conditional language is a statement of the [testator’s] motive or inducement for making the will, or whether the testator clearly intended the instrument to be contingent on a condition precedent to the operation of the will, the court must undertake construction of the testator’s intent.
How do you find intent? You look at the four corners of the document, consider its parts, and look at the circumstances surrounding the will’s execution. “Plain and unambiguous” as opposed to “ambiguous” provisions matter—the latter permit an examination of extrinsic evidence and application of legal rules of construction.

Because intent was questioned—there was a “conflict of a genuine, material issue of fact.” So, the trial court’s action was premature and, instead, the trial court can render its decision after weighing the evidence presented by the parties.

The SCOV reverses and boots the case back to the trial court.  

[1]Gifts made in contemplation of one’s own death. 

[2] Nuncupative wills are oral wills with certain conditions/requirements. The first versions of these wills can be seen with Roman military personnel, who were given comparatively relaxed will requirements than the average Roman citizen, especially to do testamentum facere in procinctu (“to make one’s will on the eve of battle”). Over time, however, regular Roman citizens could also make oral wills – like testamentum per aes et libram – but, like the military version, had strict witness requirements. Clergy quite favored them in the Middle Ages because disposition for religious purposes (to ensure one’s piety before meeting one’s maker) was more practicable, especially when administering last rites.

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