Parks v. Johnson (2022-NCCOA-129) 3/1/2022
Will Interpretation as to a Former Spouse
Chris Burti, Vice President and Senior Legal Counsel

This appeal determines between a decedent's siblings and the sister of his former spouse as to who will take under his will.

The decedent died in May of 2018 and at that time he was divorced from the defendant's sister having no children having been married from 1982 until they divorced in 2016. A portion of the decedent's 1983 will states:

ITEM TWO: I devise and bequeath unto my wife, Carol L. Magestro, all of my property of every sort, kind, and description, both real and personal, absolutely and in fee simple.

ITEM THREE: In the event my wife, Carol L. Magestro, be not living at the time of my death, I will, devise, and bequeath all of my property of every sort, kind, and description, both real and personal, unto the children of my marriage with Carol L. Magestro, whether or not born of adopted after the execution of this will, absolutely and in fee simple, to be equally divided between them, share and share alike. In the event either of my said children shall predecease me, then and in that event such child's share shall go to his or her children.

ITEM FOUR: In the event my wife, Carol L. Magestro, should predecease me and in the event there are no children born or adopted of my marriage with Carol L. Magestro, then and in that event, I direct that my estate be divided into two equal shares to be distributed as follows:
One (1) share to my mother-in-law, Elizabeth W. Chamblee, or her descendants per stirpes;
One (1) share to my mother and father, Irene and Andrew Magestro, or the survivor of them; in the event they both predecease me, then to their descendants per stirpes.

The decedent's parents predeceased him leaving his siblings, the plaintiffs who are his intestate heirs at law in the absence of a will. His former mother-in-law also predeceased him, leaving her two daughters, his ex-wife and her sister, the defendant.

Shortly after his death, the 1983 Will was probated and an administration commenced. Upon learning that the defendant claimed an interest, the siblings commenced a declaratory action and the defendant counterclaimed.

The siblings argued that the will's direct devise to his ex-wife must be revoked pursuant to N.C.G.S. Section 31-5.4, which removes all provisions in a will in favor of a former spouse upon divorce. Then, because she had not predeceased him and because they had no children, ITEMS THREE and FOUR of the will were inoperative by virtue of N.C.G.S. Section § 31-42(b), which provides where there is no effective residuary clause the estate shall pass to the intestate heirs. Applying those statutes would result in the residuary passing by intestacy to the siblings and excluding the defendant.

The defendant argued that Section 31-5.4 should be interpreted to avoid any intestate distribution under the will by removing the direct devise to the ex-wife and the residuary's condition precedent that she predecease the testator (all of the provisions which benefit her) allowing the residuary to operate leaving the siblings to take one-half of the estate and the defendant to take one-half.

Upon hearing the cross motions for judgment on the pleadings, the trial court concluded that:

[Section 31-5.4] removes any reference of Carol L. Magestro under the Will, including revoking the bequest to Carol L. Magestro set out in ITEM TWO of the Will, revoking the appointment of Carol L. Magestro as executrix as set out in ITEM FIVE of the Will, and removing any condition precedent that appears in ITEM THREE and FOUR of the Will that Carol L. Magestro predecease Frank Nino Magestro in order that ITEM THREE and/or ITEM FOUR become operable. (Emphasis added - ed.)

This resulted in the order by the trial court removing the condition precedent and determining that one-half of the residuary of the estate would pass to the defendant, as the issue of the predeceased mother-in-law, and one-half would pass to the decedent's siblings, as issues of his predeceased parents.

On appeal, the siblings contended that by removing all provisions referencing the ex-wife in the will, the trial court revoked provisions beyond the scope of the statute and outside of the intent of the testator and the Court of Appeals agreed. Opinion states:

This matter is governed not only by common law, but also by statute directly addressing the inheritance rights of former spouses. Section 31-5.4 provides in pertinent part:
Dissolution 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 . . . . § 31-5.4 (emphasis added). Section 31-5.4 plainly provides that divorce revokes only those provisions in a will which are "in favor" of a former spouse. We cannot interpret the statute to nullify all provisions in a will which simply refer to a former spouse. See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990) ("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."); Gibboney v. Wachovia Bank, N.A., 174 N.C. App. 834, 837, 622 S.E.2d 162, 165 (2005) ("[Section 31-5.4] . . . 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.).

The Court concluded that because the ex-wife survived the testator, the condition precedent requiring her to predecease him went unfulfilled and the residuary devise under the will was not triggered. In other words, there is no residuary devise and N.C.G.S. Section 31-42(b) provides that where a devise fails and where there are no residuary devisees, then the property shall pass by intestacy. The opinion notes that irrespective our legal systems' disinclination to have a will interpretation result in intestacy:

...our Supreme Court has held intestate distribution is appropriate where a residuary clause is expressly subject to an unfulfilled condition. See, e.g., McKinney v. Mosteller, 321 N.C. 730, 734, 365 S.E.2d 612, 614-15 (1988); Betts v. Parrish, 312 N.C. 47, 57, 320 S.E.2d 662, 668 (1984). Further, "[i]n the absence of a manifest intention to the contrary, a will is to be construed in favor of beneficiaries appearing to be the natural or special objects of the testator's bounty." Coffield v. Peele, 246 N.C. 661, 666, 100 S.E.2d 45, 48-49 (1957) (citing Mangum v. Durham Loan & Trust Co., 195 N.C. 469, 142 S.E. 711 (1928)).

It should be noted that both the common law and the General Statutes tend to favor a disinheritance outside of the bloodline of a decedent when there has been a divorce unless the decedent has a will that explicitly makes contrary provision. That is clearly the position of the Court here. As it is not uncommon for divorced couples to remain amicable, it would seem prudent for divorced individuals to execute a new will after any such divorce and make explicit provision one way or the other.