was close to his niece and nephew and that he otherwise provided for wife. These facts, in the
court’s view, supported an inference that husband did not intend to disinherit wife but instead
intended to lawfully provide for his niece and nephew. The court thus held that wife failed to
establish an essential element of her case. See Burgess v. Lamoille Hous. P’ship, 2016 VT 31,
¶ 17, 201 Vt. 450, 145 A.3d 217 (“Summary judgment is mandated where, after an adequate time
for discovery, a party fails to make a showing sufficient to establish the existence of an element
essential to the party’s case and on which the party has the burden of proof at trial.” (quotation and
alterations omitted)).
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¶ 7. The court further found that the reference to a surviving spouse’s “share” in § 321
referred to a spouse’s share under 14 V.S.A. § 311 when the decedent dies intestate or to a spouse’s
elective share under 14 V.S.A. § 319. See 14 V.S.A. § 311 (describing intestate share of surviving
spouse); id. § 319 (providing that spouse can “waive the provisions of the decedent’s will and in
lieu thereof elect to take one-half of the balance of the estate, after the payment of claims and
expenses”). In this case, husband died testate and wife chose to take under husband’s will. It
followed that wife was barred from seeking her elective share under § 319, and thus, § 321 did not
apply. See In re O’Rourke’s Estate, 106 Vt. 327, 332, 175 A. 24, 26 (1934) (“It is a familiar rule
that one cannot take under a will and against it.”). The court also concluded that wife failed to
demonstrate, as a matter of law, that a beneficiary designation constituted a “voluntary transfer of
any property” under § 321. For all these reasons, the court granted summary judgment to
defendants.