In re Estate of Phillips

• Decision Date: 20 December 2016
• Docket Number: No. COA16-613,COA16-613
• Citation: 251 N.C.App. 99,795 S.E.2d 273
• Court: North Carolina Court of Appeals
• Parties: In the MATTER OF the ESTATE OF James Junior PHILLIPS, Deceased, Mary Phillips, Caveator Diane Boswell, Propounder

251 N.C.App. 99

795 S.E.2d 273

In the MATTER OF the ESTATE OF James Junior PHILLIPS, Deceased, Mary Phillips, Caveator Diane Boswell, Propounder

No. COA16-613

Court of Appeals of North Carolina.

Filed: December 20, 2016

Ronald Barbee, Greensboro, for caveator-appellant.

Holt, Longest, Wall, Blaetz & Moseley, PLLC, by W. Phillip Moselely, for propounder-appellee.

TYSON, Judge.

Mary Phillips ("caveator") appeals from an order granting summary judgment in favor of Diane Boswell ("propounder"). We reverse and remand for trial.

I. Factual Background

James Junior Phillips ("decedent") was born 20 September 1925 and died 2 May 2007. The decedent was the father of two children from two separate marriages, including the caveator. The decedent also fathered other children out of wedlock, including the propounder. His death certificate lists the cause of his death as general malnutrition and dementia. The death certificate lists the propounder as the informant.

Shortly after decedent's death, the propounder submitted a paper writing as the purported last will of the decedent signed on 3 April 2007 ("2007 Will"). The 2007 Will was signed less than a month prior to decedent's death and left all of his property to the propounder. The 2007 Will was admitted to probate and Letters Testamentary were issued to the propounder.

On 3 February 2010, the caveator filed a caveat to the 2007 Will. First, the caveator asserted at the time the decedent allegedly signed the 2007 Will, he suffered from dementia and lacked sufficient mental capacity to execute the will or any other legal document. Second, she asserted the 2007 Will was procured by undue influence and duress over the decedent by the propounder and possibly others. Finally, she asserted, upon information and belief, that the 2007 Will was not properly executed as required by law for a valid attested will.

On 29 October 2012, the propounder filed a response to the caveat to the probate of the will. The response alleged an ongoing conflict between the caveator and the decedent. The decedent was alleged to have had little contact with the caveator for more than fifteen years prior to his death. The propounder referenced and attached another will, which the decedent had purportedly executed in 1993 ("1993 Will"). The 1993 Will left the majority of the decedent's property to the propounder and his nephew. The decedent also left a remaining vehicle to his girlfriend at the time, as well as a life estate in a house, with the remainder to the propounder and the decedent's nephew. The 1993 Will specifically made no bequest or devise to the caveator.

The propounder's response to the caveat also notes the decedent and attorney who executed the 2007 Will agreed to tear the 1993 Will in order to revoke it, pursuant to the execution of the 2007 Will. The caveator asserted neither the caveator nor her attorney had received a copy of the response, along with the certificate of service and exhibits. The trial court denied the caveator's motion to strike the response from being included in the record on appeal.

On 6 January 2016, the propounder filed a motion for summary judgment with six affidavits and two depositions in support of her motion. Two of the affidavits were from the two attorneys who had prepared the 1993 Will and 2007 Will. Each attorney separately stated the decedent was competent to execute each respective will. The affidavit regarding the 2007 Will asserts it was executed outside of the attorney's office.

Two of the propounder's other affidavits were submitted by a married couple, Herman and Shirley Long, who were long-time friends of the decedent. Their affidavits asserted Mrs. Long had suggested to the decedent that he prepare a will due to his declining health. Their affidavits asserted decedent responded that he already had a will, but was thinking of changing it to give the propounder all of his property. Mrs. Long's affidavit also stated she knew the caveator and noted the caveator had an estranged relationship with the decedent.

The propounder's final two affidavits were submitted by one of decedent's ex-wives and from a former girlfriend. Both women's affidavits stated they knew the propounder and caveator, and the propounder's and caveator's respective relationships with their father. Both women noted the caveator had a contentious relationship with the decedent, but that the decedent loved the propounder, and she had looked after him during his illness. After visiting the decedent during the last year of his life, both women believed him to be in good mental health and aware of his property holdings. Overall, all six of the propounder's affidavits asserted the decedent was competent to make a will, had a good relationship with the propounder, and had a strained relationship with the caveator.

On 21 January 2016, the caveator responded with four affidavits made in opposition to the propounder's motion. These affidavits were sworn by blood relatives of the decedent, including his brother, two nieces, and grandniece. None of these affiants were interested parties in the estate.

These affidavits directly contradict the claims asserted in the propounder's affidavits, asserting decedent was in good mental health and that he wanted the propounder to inherit all his property. Three of the affiants stated they had visited the decedent almost daily from March 2007 until his death; the fourth affiant visited him frequently during that time frame. The affiants all assert decedent told them he did not trust the propounder, thought she was trying to poison him, and that she had stolen money from him. Three of the affiants assert that on one occasion the propounder refused to let the caveator see her father and had pushed her out of the house. These affiants also assert they had never seen Herman or Shirley Long at decedent's house.

The affiants allege the decedent stated, both before and after his admission to the hospital, that the propounder "was trying to get him to sign some papers that would give her all of his property" and he did not want to leave her any of his property. Specifically upon his return from the hospital, decedent told them he had refused to sign any papers and did not want the propounder to have any of his property. The affiants also assert they knew decedent's signature, and the signature on the 2007 Will was not that of the decedent.

The propounder moved to strike these affidavits on the grounds they (1) were not based upon personal knowledge, (2) contained hearsay, (3) were barred by Rule 601 of the North Carolina Rules of Civil Procedure, and (4) the statements regarding the decedent's signature raised issues not pled by the caveator. The trial court heard arguments on the propounder's motion to strike the affidavits and motion for summary judgment on 25 January 2016.

The trial court granted the propounder's motion to strike the caveator's affidavits and held the tendered affidavits were not timely served pursuant to Rule 56(c) of the North Carolina Rules of Civil Procedure, they violated Rule 802 of the North Carolina Rules of Evidence, and the holding of In re Will of Ball , 225 N.C. 91, 33 S.E.2d 619 (1945). The trial court also granted the propounder's motion for summary judgment and concluded the caveator did not have standing to bring the action. The trial court further stated that even if the caveator did have standing, no genuine issue concerning any material fact existed and the propounder was entitled to summary judgment as a matter of law. The caveator appeals.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A–27(b)(1), which provides for an appeal of right from any final judgment of a superior court. N.C. Gen. Stat. § 7A–27(b)(1) (2015).

III. Issues

The caveator contends the trial court erred by (1) granting the propounder's motion to strike her submitted affidavits made in opposition to the propounder's motion for summary judgment, and (2) granting the propounder's motion for summary judgment.

IV. Standard of Review

A caveat is an in rem proceeding and operates as "an attack upon the validity of the instrument purporting to be a will." In re Will of Cox , 254 N.C. 90, 91, 118 S.E.2d 17, 18 (1961) (citation omitted). This Court has noted:

When a caveat is filed the superior court acquires jurisdiction of the whole matter in controversy, including both the question of probate and the issue of devisavit vel non. Devisavit vel non requires a finding of whether or not the decedent made a will and, if so, whether any of the scripts before the court is that will. Thus, in a case such as this one, where there are presented multiple scripts purporting to be the decedent's last will and testament, the issue of devisavit vel non should be resolved in a single caveat proceeding in which the jury may be required to answer numerous sub-issues[.]

In re Will of Dunn , 129 N.C.App. 321, 325–26, 500 S.E.2d 99, 102 (1998) (emphasis original) (citations and quotation marks omitted), disc. review denied , 348 N.C. 693, 511 S.E.3d 645 (1998).

Summary judgment may be entered in a caveat proceeding in factually appropriate cases. See, e.g ., In re Will of Jones , 362 N.C. 569, 573–74, 669 S.E.2d 572, 576–77 (2008) (analyzing the case under traditional summary judgment standards to determine whether genuine issues of material fact existed). While we review an order striking an affidavit in support of or in opposition to summary judgment for abuse of discretion, Blair Concrete Servs., Inc. v. Van–Allen Steel Co. , 152 N.C.App. 215, 219, 566 S.E.2d 766, 768 (2002), we review the trial court's ultimate determination of the summary judgment motion de novo . In re Will of Jones , 362 N.C. at 573, 669 S.E.2d at 576.

Summary judgment is only appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any part...