In re Corbett
| Docket Number | COA22-526 |
| Decision Date | 05 July 2023 |
| Parties | IN THE MATTER OF THE ESTATE OF: DAVID SCOTT CORBETT, Deceased. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 25 April 2023.
Appeal by Executrix from orders entered 27 July 2021, 28 July 2021 and 12 October 2021 and judgment entered 9 August 2021, all by Judge J. Stanley Carmical in New Hanover County, No 16-E-1551Superior Court.
Moore &Van Allen PLLC, by Thomas D. Myrick, Caitlin N. Horne and Elena F. Mitchell, for Executrix-Appellant.
Brooks, Pierce, McLendon, Humphrey &Leonard, LLP, by James C. Adams, II, Thomas G. Varnum, and Daniel L. Colston, for Caveator-Appellee.
Executrix Shannon Corbett Maus appeals from orders entered by the trial court, denying her motions for: directed verdict at the close of Caveator's evidence, directed verdict at the close of all evidence, and judgment notwithstanding the verdict, or, in the alternative, a new trial; and judgment entered upon a jury verdict finding the writing entitled "Last Will and Testament of David Scott Corbett" is not the Last Will and Testament of David Scott Corbett.[1] Executrix contends the trial court erred in (1) submitting the issues of testamentary capacity, undue influence, and devisavit vel non to the jury; (2) declining to apply the doctrine of judicial estoppel; and (3) excluding financial evidence such that the jury was not able to consider the entirety of the estate plan. We hold the trial court did not commit reversible error.
Testator David Scott Corbett and Caveator Diana Corbett were married on 14 October 1995. Sometime after, Testator contacted his lawyer, Morgan, and had a will drafted which left all of his assets, less his interest in Corbett Package Company which he left in trust, with income to Caveator and the remainder to his sisters ("Propounders")-including Executrix.
On 16 May 2012, Testator was diagnosed with metastatic colorectal cancer. Upon diagnosis, Testator was told he potentially had only six weeks to live. As such, Testator called Morgan and instructed him to prepare a will ("2012 Will") leaving all his assets to Caveator unless she failed to survive him, then to Propounders. The 2012 Will was executed 17 May 2012. Then, in May 2015, Warwick, a trusted accountant and financial advisor of the Corbett family, reached out to Morgan, advising him to prepare a new draft trust agreement for Testator.
On 6 September 2016, Testator was admitted to New Hanover Regional Medical Center with liver issues. On 12 September 2016, he was transferred to Duke University Medical Center. However, before his transfer, on 12 September 2016, Warwick and Morgan visited Testator and presented him with a newly drafted will ("2016 Will") and trust ("2016 Trust"). Testator executed the 2016 Will and 2016 Trust in the presence of Warwick; Morgan; Melton, a third-party who worked nearby and had never met Testator; and Lewis, Morgan's assistant. Under the 2016 Will and 2016 Trust, Caveator was the sole beneficiary of residuary assets held in the 2016 Trust during her lifetime, and, upon her death, any property remaining in the 2016 Trust would be evenly distributed between Propounders or their descendants.
Testator died on 16 October 2016. On 28 November 2016, Caveator and Executrix were named co-executrixes of Testator's estate and, together, filed an Application for Probate and Letters Testamentary, a copy of the 2016 Will, and an Oath or Affirmation where they swore the 2016 Will was Testator's Last Will and Testament.
On 17 September 2017, Caveator filed a caveat alleging the 2016 Will was invalid and void and resigned as executrix effective 3 October 2017. On 14 December 2017, Executrix filed a response. Judge Stanley Carmical heard motions in limine, granting Caveator's motion to exclude evidence of the 2016 tax return for Testator's estate and other evidence relating to any financials Caveator may have received outside of probate. The matter came on for trial by jury in New Hanover County Superior Court on 12 July 2021. Executrix filed a motion for directed verdict both at the close of Caveator's evidence and at the close of all evidence which were denied. On 30 July 2021, the jury returned verdicts in favor of Caveator and on 16 August 2021, the trial court entered judgment consistent with those verdicts. On 25 August 2021, Executrix filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial which was denied.
On 8 November 2021, Executrix timely appealed.
Executrix contends the trial court erred in denying her motions for directed verdict, judgment notwithstanding the verdict or for a new trial, and in entering final judgment as there was insufficient evidence to submit the issues of testamentary capacity, undue influence, and devisavit vel non to the jury; the trial court abused its discretion in declining to apply the doctrine of judicial estoppel; and the jury should have been allowed to consider the entirety of Testator's estate plan. We disagree.
Executrix argues the trial court entered final judgment in error after erroneously denying her motions for directed verdict and judgment notwithstanding the verdict as there was insufficient evidence to submit the issues of testamentary capacity, undue influence, and devisavit vel non to the jury.
We review a trial court's denial of a motion for directed verdict in the same manner we review the denial of a motion for judgment notwithstanding the verdict- to determine "whether the evidence, taken in the light most favorable to the nonmoving party, is sufficient as a matter of law to be submitted to the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citations omitted). See also Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C.App. 493, 498-99, 524 S.E.2d 591, 595 (2000) (). As to the motion for JNOV specifically, the motion "should be denied if there is more than a scintilla of evidence supporting each element of the non-movant's claim." Clark v. Barrett, 280 N.C.App. 403, 420, 867 S.E.2d 704, 718 (2021) (internal marks and citations omitted). A scintilla of evidence is very slight. Clark v. Clark, 280 N.C.App. 384, 393, 867 S.E.2d 743, 752 (2021) (citations omitted).
Executrix argues there was insufficient evidence to submit the issues of testamentary capacity, undue influence, and devisavit vel non to the jury.
Executrix contends there was insufficient evidence to send the issue of Testator's testamentary capacity to the jury as four witnesses, who were present when Testator executed the 2016 Will and 2016 Trust, testified Testator was coherent and acted voluntarily, and that they would not have proceeded with witnessing or notarizing the 2016 Will or 2016 Trust had Testator appeared otherwise incapacitated or incompetent.
A testator has testamentary capacity if: "[(1)] he comprehends the natural objects of his bounty; [(2)] understands the kind, nature and extent of his property; [(3)] knows the manner in which he desires his act to take effect; and [(4)] realizes the effect his act will have upon his estate." In re Smith, 158 N.C.App. 722, 725, 582 S.E.2d 356, 359 (2003) (citations omitted). Further, "a presumption exists that every individual has the requisite capacity to make a will, and those challenging the will bear the burden of proving, by the greater weight of the evidence, that such capacity was wanting." In re Sechrest, 140 N.C.App. 464, 473, 537 S.E.2d 511, 517 (2000) (citations omitted). While a caveator need only prove one of the essential elements of testamentary capacity was lacking at the time of execution, it is not sufficient to present "only general testimony concerning [the] testator's deteriorating physical health and mental confusion in the months preceding the execution of the will[.]" In re Buck, 130 N.C.App. 408, 413, 503 S.E.2d 126, 130 (1998). Instead, the caveator must present specific evidence relating to the testator's understanding as to one or more of the essential elements. Sechrest, 140 N.C.App. at 473, 537 S.E.2d at 517. "[E]vidence of incapacity within a reasonable time before and after, is relevant and admissible." In re Hall, 252 N.C. 70, 77-78, 113 S.E.2d 1, 7 (1960) (internal marks and citations omitted).
Witness testimony, including Testator's medical chart, unequivocally indicated that, for some time leading up to, during, and after Testator's execution of the 2016 Will and 2016 Trust, Testator was heavily medicated. Further, Caveator testified at length about Testator's state of mind leading up to and after the execution. Caveator noted Testator suffered from delusions and hallucinations starting on 8 September 2016 which continued through 12 September 2016, the day of execution. Following the execution, at the time Testator was discharged to be transferred to Duke University Medical Center, he was not allowed to sign his own discharge papers due to lack of competence. Upon arrival at Duke, Testator was diagnosed with delirium, and records reflect he had an "impaired/altered mental status."
...
To continue reading
Request your trial