In re Will of Jones

• Decision Date: 15 January 2007
• Docket Number: No. COA07-4.,COA07-4.
• Citation: 655 S.E.2d 407
• Court: North Carolina Court of Appeals
• Parties: In the Matter of the WILL OF John A. JONES, Jr.

655 S.E.2d 407

In the Matter of the WILL OF John A. JONES, Jr.

No. COA07-4.

Court of Appeals of North Carolina.

January 15, 2007.

Appeal by Propounder Joseph B. McLeod, CPA, from judgment entered 20 October 2006 by Judge Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 29 August 2007.

Brady, Nordgren, Morton & Malone, PLLC, by Travis K. Morton, Raleigh, for Propounder appellant.

Smith Debnam Narron Wyche Saintsing & Myers, L.L.P., by John W. Narron, Raleigh, for Caveator-appellee.

McCULLOUGH, Judge.

Propounder appeals order entered granting summary judgment to caveator. We affirm.

Facts

This case arises out of a challenge to the will of John A. "Buck" Jones, Jr., who died on 11 October 2005, with no children. Caveator Jean Jones is the widow of Mr. Jones. Propounder Joseph B. McLeod is the executor named under the contested will executed in March of 2005. The record on appeal tends to show the following facts: Mr. Jones was born on 6 August 1929. Mr. Jones was the majority shareholder in Carolina Packers, Inc. ("Carolina Packers"), a closely held corporation that operated a meat packing plant in Smithfield, North Carolina. During his life, Mr. Jones served as President of Carolina Packers. Mr. Jones' wife, Ms. Jones, worked for Carolina Packers as well, serving as a member of the Board of Directors.

In 2004, Mr. Jones was diagnosed with cancer. Subsequently, Mr. Jones met with estate planning attorneys Jeff D. Batts and Michael S. Batts of the law firm Batts, Batts & Bell, LLP, for the purpose of executing a will. Mr. Jones instructed these attorneys that he wanted all the household items, the farming operation, the domesticated animals, his gun collection, and any remaining personal effects to be distributed to his wife, Ms. Jones, on the event of his death. Mr. Jones also stipulated that his cattle should go to Bob Fowler. The residue of Mr. Jones' estate, including his shares of Carolina Packers stock, was to be placed in trust for the benefit of Ms. Jones during her life. Upon Ms. Jones' death, the stock was then to be delivered to Carolina Packers employees Kent Denning, Johnny Hayes, and Lynette Thompson. Under the terms of this will, executed 3 March 2005 (the "March Will"), Mr. McLeod was to be the executor of the will. Mr. McLeod was also named trustee under the resulting trust which was also executed on 3 March 2005 (the "March Trust").

On 1 August 2005, Ms. Jones contacted attorney Michael Batts, informed him that Mr. Jones was in the hospital with a tumor pressing on his spine, and requested a meeting with Mr. Batts to discuss Mr. Jones' will and power of attorney. In response to this request, Michael Batts met with Mr. and Ms. Jones on 5 August 2005.

During this meeting, Ms. Jones voiced her belief that the March Will should be changed so that all of the property, including the cattle and Carolina Packers stock, owned by Mr. Jones would be left to her. Although Mr. Jones agreed that his wife should receive the majority of his property, including his Carolina Packers stock, he disagreed as to who should receive the cattle. Mr. Jones expressed his opinion that Mr. Fowler should receive the cattle, as he had taken care of them. After discussing this with Ms. Jones, the two agreed that Ms. Jones would receive all of Mr. Jones' property other than the cattle, which would be devised to Mr. Fowler.

Mr. Batts became concerned that such a large change in the disposition of Mr. Jones' estate might lead to a will contest. Mr. Batts then asked to speak to Mr. Jones privately to determine if these provisions reflected Mr. Jones' desires for his estate. During this conversation, Mr. Jones indicated that Mr. Batts should just do what his wife wanted. Mr. Jones further indicated that if Ms. Jones wanted to sell Carolina Packers, he would leave that decision up to her and the Board of Directors. Mr. Batts then asked Mr. Jones if he was taking any medications. Mr. Jones responded that he was taking medications, but none of them were "mind altering." Mr. Batts requested that Mr. Jones sign a health information release to allow Mr. Batts to contact Mr. Jones' primary care physician. Mr. Jones responded that he would be willing to sign the release.

In response to Mr. Batts' concerns, Dr. Joan Meehan, Mr. Jones' primary care physician for several years, met privately with Mr. Jones and examined him on 17 August 2005. During the examination, Mr. Jones expressed his love for his wife and appreciation for the care she had provided him. Dr. Meehan found Mr. Jones to be oriented and in no acute distress at the time of the examination. In the opinion of Dr. Meehan, Mr. Jones was of sound mind and was alert and oriented on the day of the examination.

After talking to the doctor, Mr. Batts remained concerned that the proposed changes to Mr. Jones' March Will represented the desires of Ms. Jones and not those of Mr. Jones. Mr. Batts was unable to determine if Mr. Jones would be voluntarily executing the new will free from any undue influence. As a result of Mr. Batts' concerns, the firm of Batts, Batts & Bell, LLP, declined to prepare a new will for Mr. Jones.

On 31 August 2005, attorney James W. Narron met with Mr. Jones to discuss Mr. Jones' desire to prepare a new will and trust. Following this meeting, Mr. Narron drafted these documents for Mr. Jones and presented them to Mr. Jones on 1 September 2005. After reviewing the documents prepared by Mr. Narron, Mr. Jones signed the will (the "September Will") and trust (the "September Trust") before two witnesses and a notary. Mr. Jones' September Will expressly revoked all earlier wills and codicils. Mr. Jones died on 11 October 2005.

On 14 October 2005, Mr. McLeod submitted the March Will to the Superior Court of Johnson County for probate, despite knowledge that Mr. Jones had executed a subsequent will. The March Will was then admitted to probate and letters testamentary were issued to Mr. McLeod. On 18 October 2005, Ms. Jones filed a caveat to the will alleging the existence of another document, the September Will, as the Last Will and Testament of Mr. Jones. The caveat alleged that the March Will had been expressly revoked by the subsequent September Will. In response to this caveat, an order suspending Mr. McLeod's administration of Mr. Jones' estate was entered on 18 October 2005.

On 7 November 2005, Mr. McLeod filed a motion asserting that a controversy existed as to the competence of Mr. Jones at the time he executed the September Will. Specifically, Mr. McLeod alleged the possible existence of undue influence.

Following a 5 December 2005 hearing, the Honorable Benjamin G. Alford filed an Alignment Order on 6 February 2006. Under the terms of this order, Mr. McLeod was aligned with Lynette Thompson, Johnny Hayes, and Kent Denning as Propounders. Ms. Jones was aligned as the sole caveator. Mr. Fowler was found by the court to be an unaligned party.

On 12 July 2006, Caveator filed a motion for summary judgment. In support of her motion, Caveator presented three affidavits on 12 July 2006, and an additional eight affidavits on 12 September 2006. On 20 September 2006, Propounders filed eight affidavits in opposition to Caveator's motion for summary judgment.

On 25 September 2006, Caveator's motion for summary judgment was heard by the Honorable Knox V. Jenkins, Jr. On 20 October 2006 Judge Jenkins entered, over Propounders' objections, an order granting summary judgment in favor of Caveator and directing the Clerk of the Superior Court of Johnston County to accept for probate the September Will.

On 24 October 2006, Propounder Joseph B. McLeod filed notice of appeal and a motion for stay pending appeal. On 9 November 2006, the trial court denied Propounder's motion for stay pending appeal. On 13 November 2006, Propounder filed a petition for writ of supersedeas and motion for temporary stay with this Court. This Court granted Propounder's motion for temporary stay on 14 November 2006. Propounder's petition for writ of supersedeas was subsequently denied and the temporary stay was dissolved on 1 December 2006.

On appeal, Propounder argues that the trial court committed reversible error by entering summary judgment against him. Further, Propounder argues the trial court erred in denying a stay of the judgment pending appeal. For the reasons set forth herein, we disagree with Propounder's arguments and uphold both the order and the judgment of the trial court.

I.

As a preliminary matter, Caveator has filed a motion to dismiss Propounder's claims for lack of subject matter jurisdiction. Specifically, Caveator alleges that this Court did not obtain subject matter jurisdiction because the sole appellant in this matter, Propounder, is not an "aggrieved party," and thus lacks standing to appeal the decision of the lower court. We deny this motion.

"Only a `party aggrieved' may appeal from an order or judgment of the trial division." Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990), superseded by statute on other grounds as stated in In re J.A.A., 175 N.C.App. 66, 72-73, 623 S.E.2d 45, 49 (2005); see N.C. R.App. P. 3(a) (2005). "A party aggrieved is one whose rights are substantially affected by judicial order." Carawan v. Tate, 304 N.C. 696, 700, 286 S.E.2d 99, 101 (1982). If the party seeking appeal was not an aggrieved party, he has no standing to challenge the order of the trial court and his appeal should be dismissed. Culton, 327 N.C. at 626, 398 S.E.2d at 325.

In the instant case, Caveator argues that Propounder was not an aggrieved party. As Propounder was only the executor rather than a beneficiary under the March Will, Caveator contends that Propounder's rights were not substantially affected. Therefore, Caveator asserts, Propounder lacks standing to appeal the order of the trial court.

Caveator's contention raises an issue of first impression for this Court. In support of her argument that...