In re Appeal of the Estate of Perry, 39 A.3d 1060

Probate treats a will and valid codicils as a single testamentary instrument; this case centers on an alleged agreement to bifurcate admission of a will from a codicil and a probate order that did not reflect such an agreement.
Decedent Farwell W. Perry died May 18, 2009; his widow petitioned to admit the October 2008 will; a hearing was set to consider the will's allowance.
Sons moved to continue the hearing to determine consent to both the will and a newly discovered codicil concerning a trust for all four children; probate court continued and rescheduled the hearing.
By late July 2009 all interested parties consented to Rutland probate court jurisdiction and to admitting the 2008 will; the court directed that the will be admitted and the order stated consent to the will and any codicil(s) thereto.
The admitted instrument did not include the codicil at issue; eight months later the sons petitioned to admit the codicil; the administrator opposed as time-barred; daughter urged untimeliness and that no agreement existed.
The probate court denied the motion to dismiss, relying on a faxed letter from the sons’ attorney indicating an agreement to allow the will and to hold the codicil in abeyance; the superior court remanded for merits on the codicil.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petition to admit codicil collaterally attacks final will order	Pasearella argues final order allowing the will precludes later codicil admission.	Daughter argues no lawful bifurcation and final order forecloses codicil.	Yes; codicil admission is impermissible collateral attack on final order.
Whether there was an enforceable agreement to bifurcate proceedings	Sons contend there was agreement to bifurcate and hold codicil in abeyance.	Daughter contends no binding agreement; letter was not a formal filing and may be repudiated.	Agreement cannot override finality; letter does not support bifurcation.
Whether the probate order admitting the will implicitly included codicils	Order stated consent to the will and any codicil; codicil could be admitted later.	Order admitted only the will; codicil not included and not allowed by final order.	Order did not reflect codicil admission; codicil cannot be admitted later.

Barnes v. Hanks, 55 Vt. 317 (1883) (codicil and will construed together as one instrument)
In re Peck’s Estate, 101 Vt. 502 (1929) (will and codicil construed together as one instrument)
In re Estate of Seward, 139 Vt. 623 (1981) (order admitting a will is final and relates to codicils)
Ransom v. Bebernitz, 172 Vt. 423 (2001) (unappealed probate decree is conclusive and not subject to collateral attack)