In re Appeal of the Estate of Elaine A. Holbrook, Late of Salisbury, Vermont (David Holbrook, Cheryl Holbrook and Charles Holbrook III, Appellants)
Appeal from Superior Court, Addison Unit, Civil Division
Samuel Hoar, Jr., J.
F. Langrock and Avi J. Springer of Langrock Sperry &
Wool, LLP, Middlebury, for Appellants.
Kathleen M. Boe and James F. Carroll of Carroll, Boe &
Pell, P.C., Middlebury, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and
Morris, Supr. J. (Ret.), Specially Assigned
1. The question presented in this will contest is whether the
trial court correctly determined on summary judgment that the
testator intended a last will and testament which she
executed on the eve of surgery to be absolute rather than
contingent on her surviving the surgery. We conclude that
summary judgment was premature in this case because material
factual issues remained in dispute concerning the
testator's intent, and therefore reverse.
2. This is the second appeal to reach the Court in this
matter. In the first, In re Estate of
Holbrook (Holbrook I), 2016 VT 13, ___ Vt. ___,
140 A.3d 788, we summarized the basic underlying facts as
Testator [Elaine A. Holbrook] died on February 3, 2013. She
was survived by six children, including appellant-executors
[David and Cheryl Holbrook], appellee [Amy Holbrook], and
seven grandchildren, including appellant-grandson [Charles
Holbrook III]. Testator did not have a surviving spouse.
On January 22, 2003, testator signed a three-page handwritten
document entitled "My Last Will & Testament."
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 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.
Id. ¶¶ 2-3 (footnote omitted).
3. As we further recounted, the will named two of
testator's children as executors- appellants David and
Cheryl Holbrook-who submitted the will to the probate
division together with a petition to open a probate estate
and a list of "interested persons" identifying
testator's children and grandchildren. Id.
¶¶ 4-5. In February 2013, the probate court issued
an order allowing the will. There was no appeal. Id.
¶ 6. In March 2013, appellant-executors filed an updated
inventory valuing the estate at over $500, 000. Id.
4. In April 2013, appellee Amy Holbrook filed a motion with
the probate court seeking clarification of the will.
Appellant-executors responded with two motions questioning
whether the will was properly allowed, raising issues
concerning the will's execution, ambiguity in its devise,
notice to the grandchildren, and whether the will was
"conditional" and therefore invalid. In December 2013,
the probate court ruled that the will was properly allowed
despite the lack of proper notice to the grandchildren; that
the devise was unambiguous, creating a thirteen-part bequest
of equal shares to the six children and seven grandchildren;
and that the will was absolute rather conditional.
Id. ¶¶ 8-11.
5. Appellants timely appealed the probate court ruling to the
trial court, and appellee in response moved to dismiss the
appeal. The trial court granted the motion to dismiss the
conditional-will and notice claims, concluding that they were
not timely raised, and granted summary judgment in favor of
appellee on the issue of ambiguity in the devise, agreeing
with the probate court that the will had created a
thirteen-part division of the estate. Id. ¶ 11.
6. On appeal, we affirmed in all respects except for the
dismissal of the conditional- will claim, which we found was
properly raised following the allowance of the will.
Id. ¶ 26. Because the court had declined to