In re Estate of Perry, 2012 VT 9 (mem.)
This case presents a purported agreement to bifurcate the allowance of a will from the future allowance of a codicil. The superior court found that the purported agreement controls, notwithstanding the final probate court order allowing the will that did not reflect the agreement. We reverse.
Probate law generally treats a will and all valid codicils thereto as a single testamentary instrument. 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. After allowance of the will, sons petitioned the probate court to allow a codicil. The probate court denied daughters motion to dismiss, based on a finding there was an understanding that allowance of the codicil would be held in abeyance. On appeal from the denial, the superior court remanded the case to address the merits of whether the codicil should be allowed Daughter now appeals from this decision, arguing there was never an agreement to bifurcate the proceedings, and that probate court’s order admitting the will was final, notwithstanding any such agreement.
This case presents a purported agreement to bifurcate the allowance of a will from the future allowance of a codicil. The superior court found that the purported agreement controls, notwithstanding the final probate court order allowing the will that did not reflect the agreement. We reverse.
Probate law generally treats a will and all valid codicils thereto as a single testamentary instrument. 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. After allowance of the will, sons petitioned the probate court to allow a codicil. The probate court denied daughters motion to dismiss, based on a finding there was an understanding that allowance of the codicil would be held in abeyance. On appeal from the denial, the superior court remanded the case to address the merits of whether the codicil should be allowed Daughter now appeals from this decision, arguing there was never an agreement to bifurcate the proceedings, and that probate court’s order admitting the will was final, notwithstanding any such agreement.
A codicil is regarded as a part of the will; and the will and codicil are to be construed as one instrument. Because the will and codicils are a single instrument, the order allowing the will and codicils is a final order, and any later petitions to allow a codicil are impermissible collateral attacks. Assuming arguendo there was an agreement to bifurcate the proceedings, the probate court’s order allowing the will did not reflect such an agreement and was final.
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