Nunnenman v. Estate of Grubbs

JOHN MAUZY PITTMAN, Judge. Lin 2003, decedent Donald Grubbs transferred his individual retirement account (IRA) to Raymond James and Associates, Inc., naming appellant as the beneficiary to receive the residue in the event of his death. Decedent was hospitalized in May 2005 and died on June 9 of that year. On June 3, 2005, decedent summoned an attorney to the hospital, where decedent made and executed a last will and testament that did not mention the IRA account. This will left decedent’s entire estate to his mother, Shervena Grubbs, who was also named as executrix. In that capacity, Shervena Grubbs filed this action for an injunction freezing the assets of the IRA account based on her assertion that a note that she found in decedent’s Bible months after his death had the effect of changing the beneficiary designation in the IRA | ^account to make her the beneficiary. The trial court agreed and awarded her the account. Appellant asserts that the trial court clearly erred in so doing. We agree, and we reverse. This case requires construction of three documents: a will, an IRA, and a handwritten note, which was assertedly found by Shervena Grubbs in a Bible some time after decedent’s death. The cardinal rule for the interpretation of wills and other testamentary documents is that the intent of the testator should be ascertained from the instrument itself and effect given to that intent. Rowland v. Faulkenbury, 47 Ark. App. 12, 883 S.W.2d 848 (1994). The purpose of construing a will is to arrive at the testator’s intention; however, that intention is not that which existed in his mind, but rather that which is expressed by the language of the instrument. Mills’ Heirs v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971). An IRA constitutes a contract between the person who establishes the IRA for his or her retirement and the financial institution that acts as the custodian of the IRA. Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006). Like an insurance policy, an IRA includes designation of beneficiaries to receive the residue in the event of the retiree’s death. See id. The rules pertaining to the construction of contracts are well settled: In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005). The intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. When a written contract refers to another instrument and makes the terms of that instrument a part of the |3contract, the two are construed together as the agreement of the parties. Isbell v. Ed Ball Construction Co., 310 Ark. 81, 833 S.W.2d 370 (1992). When contracting parties express their intention in clear and unambiguous language in a written instrument, we must construe the written agreement according to the plain meaning of the language employed. However, where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing. Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000). Ambiguities can be patent or latent. When, on its face, the reader can tell that something must be added to the written contract to determine the parties’ intent, the ambiguity is patent; a latent ambiguity, on the other hand, arises from undisclosed facts or uncertainties of the written instrument. Id. There are no Arkansas cases dealing specifically with attempts to change IRA beneficiaries by will, but the cases involving insurance policy beneficiaries, cited by appellant, are analogous and instructive. It is generally held that, where a life insurance policy reserves to the insured the right to change the beneficiary but specifies the manner in which the change may be made, the change must be made in the manner and mode prescribed by the policy, and according to most courts any attempt to make such change by will is ineffectual. See generally Wanda Ellen Wakefield, Annotation, Effectiveness of Change of Named Beneficiaey of Life OR Accident INSURANCE Policy By Will, 25 A.L.R.4th 1164 (1992). However, Arkansas law is contrary to the general rule: Arkansas holds that a change of beneficiary can in fact be accomplished in a will so long as the language of the will is 14 sufficient to identify the insurance policy involved and an intent to change the beneficiary. Pedron v. Olds, 193 Ark. 1026, 105 S.W.2d 70 (1937); see also Allen v. First National Bank, 261 Ark. 230, 547 S.W.2d 118 (1977). With these principles in mind, we now turn to the documents involved in the present case. Decedent’s IRA application and agreement with Raymond James and Associates, Inc., designated appellant as sole beneficiary of his IRA. Appellant was identified by name, social security number, and date of birth. The effect of this designation upon decedent’s estate and the method of changing beneficiaries were specified as follows: I understand that if I designate “my will” or some variation thereof as my Beneficiary, that the Custodian shall interpret this term as my estate and that if I do not designate any Beneficiary, my Beneficiary shall also be deemed to be my estate. I understand that I may revoke this beneficiary designation at any time by completing and submitting a new beneficiary designation, which shall supercede all prior beneficiary designations. Such replacement designation shall be submitted on either a form provided by the Custodian for this purpose and/or in some other manner deemed acceptable to the Custodian. Decedent’s last will, made and executed with the assistance of an attorney shortly before his death, expressly revoked any prior will and stated: I hereby give, devise, and bequeath all of my estate and property, of every kind and nature, and wherever situated, to my mother, Shervena T. Grubbs, should she survive me. This testamentary provision is unambiguous. As appellant argues, it is also inadequate to effect a change of beneficiary because the language is insufficient to identify the IRA account involved and an intent to change the beneficiary. See Allen, 261 Ark. 280, 547 S.W.2d 118. The trial court found, however, that decedent’s IRA beneficiary was changed from appellant to appellee by virtue of a note that appellee assertedly found in a Bible in decedent’s home after his death. This document, handwritten on a Nations Bank notepad, provided in its entirety as follows: May 2005 My Will I Donnie Grubbs want all of my estate All IRA and any SBC Telco and all other assets and worldly goods to go to my Mother Shervena Grubbs. Being of sound mind. Donnie Grubbs The trial judge recognized in his letter opinion that this handwritten note appears dubious. He was right. It was found by appellee, who was the only person who could benefit from its discovery. The plausibility of appellee’s account of this fortuitous discovery is not helped by the conflicts in the testimony at trial. Appel-lee testified that she found the note while at decedent’s house in the company of decedent’s former coworker, Mr. Tommy Moran, and that she immediately showed the note to Mr. Moran. However, Mr. Moran testified that appellee did not do so, and that he had never seen the document or known of its existence until the day of the trial. Nevertheless, assuming that the note was authentic, and that it might properly be considered to contradict or vary the unambiguous terms of decedent’s IRA beneficiary designation or his last will, the trial court clearly erred in finding that it was an effective change of decedent’s IRA beneficiary. As appellant argues, if the note is regarded as a | ^holographic will, it was revoked by the express terms of decedent’s last will and by operation of law pursuant to Ark.Code Ann. § 28-25-109(a)(1) (Repl.2004). If the note is not regarded as a will, then the rule permitting change of beneficiaries in a will has no application to it, and appellee had the burden of proving that decedent intended for the note to be a change of beneficiaries and did everything reasonably possible to effectuate a change of beneficiary. Allen v. First National Bank, supra. In light of the undisputed evidence that decedent could and did summon an attorney to his bedside mere days before his death and thereby execute a valid and unambiguous last will, the trial court could not reasonably find that decedent did everything reasonably possible to change beneficiaries given his failure to employ similar efforts to communicate his intent to do so to the custodian of the IRA. Reversed and remanded. VAUGHT, C.J., and GLADWIN, GLOVER, and MARSHALL, JJ., agree. HART, J., dissents.