In re Estate of Perry

The central issue on appeal to the Supreme Court in this case arose from a purported agreement to bifurcate the allowance of a will from the future allowance of a codicil. Farwell W. Perry died leaving behind a wife and four adult children (three sons and a daughter). The probate court set a hearing to consider the allowance of the will. Shortly before the hearing, the decedent's sons filed a motion to continue the hearing to allow the interested persons to determine whether they wished to consent to the allowance of both the will and a newly discovered two-page letter from decedent to his children purporting to be a codicil to his will. The codicil involved a single, discrete piece of the estate: a trust which previously had been established with daughter as sole beneficiary would now include all four children as equal beneficiaries. The probate court granted a continuance and rescheduled the hearing. The decedent’s daughter moved to dismiss the petition as untimely. The probate court denied the motion to dismiss, and the daughter appealed to the superior court. A letter from sons' attorney to the register of the probate court representing that "[t]he several parties have reached an agreement to allow the Last Will and Testament of [decedent]," and that they "have agreed to hold in abeyance the need to hold a hearing on the allowance of the purported Codicil to the will" appeared clear on its face. However, the order issued by the probate court allowing the will made no mention of any bifurcation of the allowance of the will from consideration of the purported codicil. While the parties all knew about the codicil at that time, and the order purported to allow any codicils, only the will itself was admitted. The court order did not grant an exception to the principle that wills and their codicils are considered one instrument. The Supreme Court found the superior court's decision to be made in error: "the law is therefore clear: an order allowing a will normally includes any known codicils, and any later effort to allow a codicil is an impermissible collateral attack on a final order." The Court held that the codicil could not be admitted, reversed the superior court's decision and denied the sons' petition to allow the codicil. View "In re Estate of Perry" on Justia Law