Additional Doctrines Impacting Wills

• Author: Browne C. Lewis
• Pages: 556-587

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Chapter Thirteen: Additional Doctrines Impacting Wills

13.1 Introduction

In Chapter Eleven, we examined the things that are necessary to validly execute a will. The

purpose of this chapter is to discuss doctrines that are relevant to the execution of wills. The first

two principles, integration and incorporation by reference, apply when someone wants the probate

court to treat an independent document as part of the will. The doctrine of republication by codicil

relates to the impact that a codicil can have on a will. The main way to dispose of property after

death is through the execution of a will. Courts tend to invalidate other methods persons attempt to

use to control the distribution of their probate property after they die. The doctrine of acts of

independent significant is used to show that the person had a nontestamentary motive, so his or her

wishes should be enforced.

13.2 Incorporation by Reference

The testator may want another document to be considered as a part of his or her will. Courts

can use the doctrine of incorporation by reference to carry out the testator’s intent. In order for a

doctrine to be incorporated into a will, the following three factors must be present: (1) the writing

must be in existence at the time the will is executed; (2) the will must describe the specific writing

and (3) the testator must manifest an intent that the writing be incorporated into the will.

§ 2-510. Incorporation by Reference

A writing in existence when a will is executed may be incorporated by reference if the language of

the will manifests this intent and describes the writing sufficiently to permit its identification.

13.2.1 In Existence

Cyfers v. Cyfers, 759 S.E.2d 475 (W. Va. 2014)

WORKMAN, Justice:

The Petitioners, Cathy Cyfers, Joseph Cyfers, and Megan Cyfers, APPEAL FROM A November 28,

2012, order entered by the circuit court of Kanawha County, West Virginia, granting summary

judgment in favor of the Respondents, Jack Cyfers, Helen Cyfers, Roger Cyfers, Dottie Cyfers and

Wayne Cyfers, who are beneficiaries under a Will.

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I. Facts and Procedural History

This case arises from the Last Will and Testament (“the Will”) of Lois Jayne Cyfers Miller (“the

Decedent”), who died on January 7, 2009. The Will was executed by the Decedent on August 15,

2006, and was witnessed by Stacy Clark and Boyce Griffith, Esq. Mr. Griffith also prepared the Will

for the Decedent. The Will had an “′xhibit A” attached to it when it was submitted to probate by

Philip Vallandingham and Cathy Cyfers, the co-executors (referred to collectively as “the co-

executors”) named in the Will.

Article IV of the Will referenced Exhibit A and provided that other devises could be made through

′xhibit A, “which exhibit [wa]s of even date” with the Will. ′xhibit A also contained handwritten

notations throughout the five-page document using different colors of ink and included a post-

execution date in the Decedent’s handwriting. The exhibit set forth bequests made by the Decedent

to various relatives as referenced in Article IV of the Will. The exhibit, standing alone, was not

signed by the Decedent or witnessed. Included among the handwritten bequests was the following:

“Roger & Dottie [;] Nephew & Wife [;] Coin Collection in Strong Box at Home.” There was another

handwritten bequest to “Debbie Cyfers[;] (Niece in Utah).” That bequest provided: “3/4 coat Mink

& Leather, Many family Albums (20 some) and Loose Pictures, Keep in Family always!!!, Many good

coats, suits, purses, fur pieces, Various Jewelry, 1 diamond engagement ring, 1 Anniversary ring (8

small diamonds), Mixture too various to list, Mantle clock, ‘Howard Miller’ Anniversary Clock.”

There were other varied bequests of personal property, bank accounts and real estate contained

within Exhibit A. On the last page of the exhibit was the following handwritten language:

I love all my relatives and I have no children. My sisters & brothers have left their children their

estates; therefore, some do not need as others. Am taking this all into consideration, am trying to

do what, I think, is best. Gertrude was so good to Mom, Dad and Uncle Elmer!!! Since Joe Miller,

my love, help[ed] [to] make a lot of this money I want his only live sibling to have equal monies. I

love you Delores. (11/29/06[)].

The date of November 29, 2006, was nearly four months after the Will was executed.

A dispute arose between the co-executors of the Will and some of the beneficiaries of the Will

concerning the administration of the Decedent’s estate. On October 7, 2010, Jack Cyfers, Helen

Cyfers and Rogers Cyfers petitioned the County Commission to remove the co-executors stating

that “the ′xecutors of Lois Jayne Cyfers Miller’s estate have continually refused to administer the

estate, pursuant to the Decedent’s last wishes, as set out in her Last Will and Testament. They refuse

to distribute the assets as directed by the Will.”

A few days later, on October 13, 2010, the co-executors filed a petition for declaratory relief in the

circuit court, asking for

(a) An order determining whether the handwritten notations on the face of the

will alter the will or have no effect on the will; (b) An Order determining whether

the handwritten attachment, Exhibit A, is validly incorporated by reference; [and]

(c) For such other relief and direction in the administration of said estate as the

Court deems proper.

On November 24, 2010, following a hearing regarding the petition to remove the co -executors, the

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County Commission entered an order ruling that according to the Decedent’s Will, she left “all her

tangible personal property to Cathy Cyfers and all of the remainder of her personal property,

including the proceeds from the sale of her home ... to those people listed in ′xhibit ‘A’ attached to

the Will.” The County Commission further determined that the co-executors had failed to

administer the Decedent’s estate as set out in her Will and that the co-executors had contested the

validity of the Will, which placed them in conflict with the heirs to the Decedent’s estate and with

the Decedent’s wishes. Consequently, the County Commission revoked the appointment of Mr.

Vallandingham and Mrs. Cyfers as co-executors of the Decedent’s estate and appointed the Sheriff

of Cabell County to serve as executor.

The declaratory judgment action proceeded in circuit court. The parties submitted cross-motions for

summary judgment. By letter dated September 26, 2011, the circuit court initially granted the co-

executors’ motion, concluding that ′xhibit A was not validly incorporated by reference into the Will

under West Virginia law and directed the co-executors to prepare an order reflecting that ruling.

On January 12, 2012, the co-executors submitted an order as directed by the circuit court. On

January 17, 2012, the respondent beneficiaries filed an objection to the proposed order and filed a

motion for reconsideration. By order entered September 18, 2012, the circuit court granted the

respondents motion for reconsideration and set the matter for trial on October 9, 2012.

On October 9, 2012, the parties appeared for trial. At that time the circuit court inquired of the

parties if they wished to have the circuit court rule on renewed motions for summary judgment. The

parties agreed that the issues could be resolved by the pending summary judgment motions, thereby

waiving their right to a jury trial in favor of a ruling by the circuit court as a matter of law.

By order entered November 28, 2012, the circuit court granted summary judgment in favor of the

Respondent beneficiaries under the Decedent’s Will. The circuit court concluded that ′xhibit A was

properly incorporated by reference into the Decedent’s Will. More precisely, the circuit court, in

relevant part, determined that “‘′xhibit A’ (a) is repeatedly referenced in the Will; (b) is attached to

the Will; [and] (c) is written in the Testator’s handwriting [ ]....” Regarding only the handwritten

notations found on the Will and Exhibit A that were clearly made after the date the Will was

executed, the circuit court determined that “all of the disputed notations with dates after the Will

was executed are surplusage and can be disregarded as the remainder of the Will is more than

adequate to express ... [the Decedent’s] intent and to dispose of her property.” ″inally, after

concluding that the handwritten notations on the Will itself and the single handwritten notation

containing a post-execution date on Exhibit A were surplusage and were to be disregarded, the trial

court found that “there is nothing to indicate that the Will together with ′xhibit A do not

adequately and accurately reflect how ... [the Decedent] intended her Estate to be divided upon her

death.”

On appeal, the Petitioners argue that the circuit court erred: 1) in concluding that Exhibit A to the

Will was properly incorporated by reference into the Will; 2) in concluding that the handwritten

notations contained within Exhibit A clearly made after the date that the Will was executed are

surplusage and were to be disregarded; and 3) by considering the Decedent’s intent with respect to

whether Exhibit A was properly incorporated by re ference into the Will. Based upon a review of the

parties’ briefs and oral arguments, the appendix record, and both parties’ agreement that the issues

were susceptible to resolution by summary judgment, we conclude there was no other material

evidence available and therefore insufficient evidence to allow Exhibit A to be incorporated by