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Codicil Language Gives Widow Property

A Rappahannock County Circuit Court grants a widow’s motion for partial summary judgment recognizing her right to all testator husband’s personal property and real estate “currently” in the testator’s name, interpreted as property owned at the time of the testator’s death.

The relevant provisions of the Codicil paragraph 3 state the testator gives to his wife Janet Borden “all personal property and real estate that is currently in my name alone and property I jointly own with her.” Another provision of the Codicil in paragraph 4 directs that any liens that may exist on personal property established to support the testator’s company be paid from the $500,000 life insurance policy that has Fred W. Borden Inc. listed as owner and beneficiary.

The Executrix, spouse, has moved for partial summary judgment as to the disposition of decedent’s interests in certain LLCs known as the Marshal LLC, the Myrtle Beach LLC and the Winchester LLC. Fred W. Borden III acquired these interests subsequent to the execution of the Codicil but prior to his death.

The phrase “currently in my name,” as used in paragraph 3 of the Codicil, is not ambiguous. By the provisions in the Codicil, the testator sought to convey to his surviving spouse “all personal property and real estate.” It is a general bequest, the objects of which are to be identified in accordance with the statute, at the time of death.

Accordingly, the motion of Janet Borden, in her individual capacity as widow of decedent Fred W. Borden III and a beneficiary of the estate, for partial summary judgment will be granted and the cross motion of Malinda Dillard will be denied.

The motion of Fred W. Borden IV for partial summary judgment with respect to the disposition of the life insurance proceeds is denied. The court finds that paragraph 4 of the Codicil is ambiguous and that the matter’s raised as to the application of the proceeds are susceptible of parol evidence as to the testator’s intent. Summary judgment on the extant record should be denied. With respect to distribution of the shares to Fred W. Borden IV, counsel for Janet Borden and Executrix correctly note the effect of Va. Code § 64.1-177 on such a distribution at this time. Accordingly, this matter will be continued a to the issues raised by paragraph 4 of the Codicil.

Borden v. Borden (Horne) No. CL 12-50, May 25, 2012; Rappahannock County Cir.Ct.; Elizabeth M. Horsley, Kathryn M. Lipp, David L. Konick, Michael E. Derdeyn for the parties. VLW 012-8-184, 3 pp.


VLW 012-8-184

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