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In re Appeal of Estate of Holbrook

Supreme Court of Vermont

March 6, 2017

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 Samuel Hoar, Jr., J.

          Peter 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

          REIBER, C.J.

         ¶ 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 follows:

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. ¶ 7.

         ¶ 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"[1] and therefore invalid.[2] 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. ΒΆ 26. Because the court had declined to ...


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