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In re Appeal of Estate Elaine A. of Holbrook Late of Salisbury

Supreme Court of Vermont

January 29, 2016

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

On Appeal from Superior Court, Addison Unit, Civil Division May Term, 2015 Robert A. Mello, J.

Peter F. Langrock and Katherine B. Kramer of Langrock Sperry & Wool, LLP, Middlebury, for Appellants.

Kathleen M. Boe and James F. Carroll of English, Carroll & Boe, P.C., Middlebury, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned


¶ 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 (grandson), 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, 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 seven 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.

ΒΆ 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 appellee's motion for clarification. The probate division concluded that appellant-executors lacked standing to raise the ...

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