Wills_divorced spouse_unchanged will
The language of N.C.G.S. § 31-5.4 clearly mandates that a former spouse is denied any
testate disposition unless the testator clearly indicates in the will that he or she would remain a
beneficiary even if they divorced. Neither of the provisions of the will cited by the plaintiff in
this case so provides, and summary judgment should not have been granted for plaintiff.
Although North Carolina has a long-standing policy of avoiding intestate succession, a will
cannot be construed to conflict with a clear legislative mandate.
Gabriel, Berry, & Weston, L.L.P., by M. Douglas Berry for
plaintiff-appellee.
Browne, Flebotte, Wilson, Horn & Webb, by Daniel R. Flebotte,
for defendants-appellants.
CALABRIA, Judge.
The surviving next of kin (“defendants”) of Larry W. Caudle
(“decedent”) appeal a summary judgment order declaring Walker F.
Crocker Caudle Gibboney (“plaintiff”) the sole beneficiary under
the terms of decedent's will. We reverse.
From 1962 until 1975, plaintiff and decedent (collectively
“the parties”) either dated or remained “good friends,” untildecedent proposed to plaintiff in June 1975. During the time the
parties were “simply in a dating relationship,” decedent executed
a will dated 25 May 1973. Article II of the will set forth four
(4) mutually exclusive tiers of contingent dispositions in
descending order of priority, paraphrased as follows:
1st: to a surviving wife, lawfully married to
decedent on his death date, “absolutely and in
fee simple forever”; or
2nd: if no surviving wife, to decedent's
surviving children in equal shares fee simple
absolute, or per stirpes to the issue of
decedent's deceased children; or
3rd: if no surviving wife, children, or issue
of deceased children, to decedent's parents,
Edward W. Caudle and Treva W. Caudle, in equal
shares, or to the survivor, in fee simple
absolute; or
4th: if none of the above persons survive
decedent, to “Miss Walker F. Crocker, of
Greensboro, North Carolina, if she shall
survive decedent in fee simple absolute.”
The will failed to include a specific residuary clause.
The parties were married on 20 September 1975, separated on 19
September 1995, and later divorced on 24 February 1997. They
executed a property settlement agreement in which they agreed
first, to divide their marital assets and second, not to “make any
claim for any interest or estate whatsoever in or to any property,
real, personal, or mixed, which the other now owns or hereafter
acquires.” Decedent died on 11 October 2003 predeceased by his
parents. He never changed his will, never remarried, and never had
children.
The executor indicated decedent's estate would pass intestate
by operation of law. The application for probate and letters
testamentary included an addendum listing decedent's survivingpaternal and maternal next of kin (“next of kin”). Plaintiff filed
a complaint on 23 April 2004, seeking entry of a declaratory
judgment regarding the construction and interpretation of
decedent's will, specifically that she was the sole surviving
beneficiary. In a motion for summary judgment, plaintiff asserted
there was “no genuine issue as to any material fact affecting [her]
entitlement to a declaratory judgment declaring [her] to be the
sole residual beneficiary” under decedent's will. On 17 September
2004, the trial court granted summary judgment, declaring
plaintiff the sole residual beneficiary. All defendants except
Wachovia Bank appeal.
Defendants argue the court erred in granting plaintiff's
motion for summary judgment by failing to conclude that the
provisions of the will in favor of plaintiff were revoked by N.C.
Gen. Stat. § 31-5.4. We agree.
A party is entitled to summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). When a trial court rules on a motion for summary judgment,
“the evidence is viewed in the light most favorable to the
non-moving party,” Hinson v. Hinson, 80 N.C. App. 561, 563, 343
S.E.2d 266, 268 (1986), and all inferences of fact must be drawn
against the movant and in favor of the nonmovant. Floyd v. McGill,
156 N.C. App. 29, 35, 575 S.E.2d 789, 793 (2003). If possible, the court's duty is to render a will operative
rather than invalid. Stephenson v. Rowe, 315 N.C. 330, 335, 338
S.E.2d 301, 304 (1986). The testator's intent is “the polar star
which is to guide [the courts] in the interpretation of all
wills[.]” Clark v. Connor, 253 N.C. 515, 520, 117 S.E.2d 465, 468
(1960). In construing a will, we also consider established rules
of law and public policy. Stephenson, 315 N.C. at 335, 338 S.E.2d
at 304 (1986). North Carolina General Statutes § 31-5.4 (2003)
expressly provides:
[d]issolution of marriage by absolute divorce
or annulment after making a will does not
revoke the will of any testator but, unless
otherwise specifically provided in the will,
it revokes all provisions in the will in favor
of the testator's former spouse or purported
former spouse, including, but not by way of
limitation, any provision conferring a general
or special power of appointment on the former
spouse or purported former spouse and any
appointment of the former spouse or purported
former spouse as executor, trustee,
conservator, or guardian. If provisions are
revoked solely by this section, they are
revived by the testator's remarriage to the
former spouse or purported former spouse.
(Emphasis added.)
In accordance with this statute, we consider whether decedent
“otherwise specifically provided” for plaintiff to take under his
will in a manner rendering the automatic revocation provision of
N.C. Gen. Stat. § 31-5.4 inoperative upon the parties' divorce.
Plaintiff argues the first and fourth dispositional tiers satisfy
the exception provisions. Specifically, plaintiff asserts the
will's terms create the following alternative disposition of
decedent's estate: the first tier provides for plaintiff only ifshe was legally married to decedent upon his death and the fourth
tier operates as a final, residual disposition specifically to
plaintiff in the event there were no beneficiaries available to
take under the prior three tiers, including plaintiff as a lawfully
wedded spouse under the first tier. We hold that plaintiff's
argument is unavailing.
“Where the language of a statute is clear and unambiguous,
there is no room for judicial construction and the courts must
construe the statute using its plain meaning.” Burgess v. Your
House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990).
Thus, the statute “must be given effect and its clear meaning may
not be evaded by an administrative body or a court under the guise
of construction.” Utilities Comm. v. Edmisten, Atty. General, 291
N.C. 451, 465, 232 S.E.2d 184, 192 (1977). The language of N.C.
Gen. Stat. § 31-5.4 (2003) that “unless otherwise specifically
provided [dissolution of marriage by divorce] revokes all
provisions in the will in favor of the testator's former spouse,”
clearly mandates that unless the testator expressly indicates in
his will that even if he divorces his spouse she would remain a
beneficiary, the former spouse is denied any testate disposition.
In this case, the decedent failed to so provide. Neither of the
provisions of the will cited by plaintiff expressly provides, as
required by statute, that if decedent divorces plaintiff, plaintiff
would take any testamentary disposition. Absent such a statement
in decedent's will, plaintiff has not satisfied the requirements of
N.C. Gen. Stat. § 31-5.4. While we agree with plaintiff that this State has a
long-standing policy to construe a will so as to avoid the
intestate distribution of any part of a testator's property, see
Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195 (1985), we
cannot affirm a construction of a will that conflicts with the
clear legislative mandate of N.C. Gen. Stat. § 31-5.4. Because we
hold decedent's will failed to specifically provide for plaintiff
in a manner rendering the automatic revocation provisions of N.C.
Gen. Stat. § 31-5.4 inoperative, we do not reach the issue of what
impact the parties' property settlement agreement otherwise had on
plaintiff's ability to take under this will.
We reverse the trial court's summary judgment finding
plaintiff the sole beneficiary under the decedent's will and remand
for entry of summary judgment in favor of defendants.
Reversed and remanded.
Judges ELMORE and GEER concur.
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