In re Will of Jones

Citation669 S.E.2d 572,362 N.C. 569
Decision Date12 December 2008
Docket NumberNo. 37A08.,37A08.
CourtUnited States State Supreme Court of North Carolina
PartiesIn the Matter of the WILL OF John A. JONES, Jr.

Brady, Nordgren, Morton & Malone, P.L.L.C., by Travis K. Morton and Jason L. Hendren, Raleigh, for propounder-appellant Joseph B. McLeod.

Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by John W. Narron, Bettie Kelley Sousa, and Alicia Jurney Whitlock, Raleigh, for caveator-appellee Jean L. Jones.

HUDSON, Justice.

This case involves a dispute over a will executed on 1 September 2005 by testator John "Buck" Jones, Jr. and whether that will was the product of undue influence exerted upon Mr. Jones by his wife of forty-seven years, Jean L. Jones. Because we believe genuine issues of material fact remain as to the question of undue influence, we reverse the Court of Appeals, which, in a divided opinion, affirmed the trial court's grant of summary judgment to Mrs. Jones and its order for the will to be accepted for probate. We also instruct the Court of Appeals to remand to the trial court for further proceedings not inconsistent with this opinion on the issues of undue influence and devisavit vel non.

On 11 October 2005, Mr. Jones, a Johnston County resident, died at the age of seventy-six, survived by his wife and no linear descendants. Prior to the will he executed on 1 September 2005 ("September Will"), Mr. Jones executed a will and trust agreement on 3 March 2005 ("March Will"); none of the beneficiaries was present at the signing. In the March Will, executed after a February 2005 meeting with attorney Michael S. Batts and his law partner, Mr. Jones directed that all household items, his farming operation, his domesticated animals, his gun collection, and any remaining personal effects be distributed outright to Mrs. Jones upon the event of his death. He also specifically devised certain cattle to Robert Fowler, with whom he had a longstanding friendship and partnership for cattle breeding and sales.

The March Will further provided that the residue of the estate, including Mr. Jones's shares in Carolina Packers, Inc., a closely held meatpacking company in Smithfield, North Carolina, started by Mr. Jones's father and of which Mr. Jones was president and majority shareholder, go into a trust for Mrs. Jones's benefit during her life. Joseph B. McLeod, who had provided tax and accounting services for both Carolina Packers and Mr. Jones since 1988, was named trustee. Upon Mrs. Jones's death, the stock was to be delivered to three longtime Carolina Packers employees, Kent Denning, Johnny Hayes, and Lynette Thompson. Mr. Jones also named Mr. McLeod the executor of the March Will. According to evidence in the record, Mr. Jones was in decent health, ambulatory, and still working at Carolina Packers at the time he signed the March Will. According to Mr. Batts, Mr. Jones specifically stated that he wanted his wife taken care of but did not want her to have control of Carolina Packers, and he described the terms of the March Will as being "exactly what I want."

In the September Will Mr. Jones expressly "revoke[d] all earlier wills and codicils" and left close to the entirety of his estate to Mrs. Jones outright, including the cattle previously devised to Mr. Fowler. The September Will also directed that the residue of the estate be placed in a trust; although the trust documents do not appear in the record, the parties' briefs to this Court suggest that the September Will gave Mrs. Jones control of Carolina Packers. She was also named executrix of the September Will.

Between the signing of the March Will and the September Will, Mr. Jones began "a steady downhill course" in April 2005, apparently related to the cancer with which he had been diagnosed in 2004. In late July 2005, Mr. Jones visited Rex Hospital's emergency room due to "pain [and] confusion," and CT scans at that time showed multiple metastatic deposits or tumors in his brain. According to Dr. Leroy G. Hoffman, Mr. Jones's treating oncologist during August and September 2005, such tumors can cause confusion, and a doctor's notes from that emergency room visit reflect that Mr. Jones was indeed "profoundly weak and confused," with Mrs. Jones "serving as his surrogate decision-maker." Mr. Jones's diagnosis at that time, of which Mrs. Jones was "very aware," was terminal.

Deposition testimony and affidavits from longtime friends and acquaintances of Mr. Jones further indicate that he was suffering from intense pain, exhaustion, and confusion during the summer of 2005. Kent Denning, who had worked at Carolina Packers for approximately twenty years, recalled Mr. Jones exhibiting signs of confusion in the office at that time, resulting in having to take Mr. Jones home. Also in July, Mr. Fowler observed Mr. Jones take more than the prescribed amount of narcotic pain medication while the two men were fishing together. Mrs. Jones stated that Mr. Jones had experienced difficulties regulating his pain prescription beginning in late June and through part of the summer of 2005.

On or about 1 August 2005, Mr. Jones underwent "a thoracic lumbar laminectomy" to relieve pain and pressure from a tumor pressing against his spine. Dr. Hoffman testified that when "someone's admitted to the hospital for an episode like this ... with the medications they're taking, the postoperative setting, there can be confusion.... There may [also] be some emotional stress going on. You'd most likely think there was." Following his release from the hospital in early August, Mr. Jones became a "total care" patient, relying heavily on others, especially Mrs. Jones, to assist him with his medication, getting out of bed, shaving, bathing, eating, and leaving home. He remained this way until his death in October.

During the months of August and September 2005, Mr. Jones was especially physically and mentally weak. According to good friend John Antunes, Mr. Jones looked and sounded increasingly weak and vulnerable, physically and mentally, during the summer of 2005 until the time of his death. Attorney Michael Batts likewise described Mr. Jones as being worn down, exhausted, and completely dependent on Mrs. Jones when he met with them at their residence on 5 August 2005 to discuss potential changes to the March Will, which he had drafted. Mr. Fowler stated that during his August and September visits with Mr. Jones, he "appeared very weak, less alert, and he did not speak much." In a mid-August meeting with the Joneses regarding Mr. Jones's and Mr. Fowler's cattle dealing, Mr. Fowler recalled that Mrs. Jones controlled the conversation, even though Mr. Fowler had never known Mr. Jones to involve his wife in these matters. He also believed that Mr. Jones appeared "weak, sick, and defeated."

Wayne Sinclair, a close friend of Mr. Jones for over ten years and a witness to the March Will, stated that he saw Mr. Jones nearly every day during 2005. Between August and September 2005, he observed Mr. Jones's health, strength, and mental ability, including his sharpness and alertness, rapidly decline, and he often helped Mr. Jones shave and bathe. According to Mr. Sinclair, Mr Jones stopped speaking much during his September visits, and he also saw Mr. Jones crying, which he had never before seen. Mr. Sinclair stated that "[b]y the end of August 2005, [Mr. Jones's] attitude and personality were greatly changed in that it appeared to [him] that he was not the same man. His spirit was gone and all of the fight was out of him by that point."

Finally, Dr. Hoffman saw Mr. Jones several hours after the September Will was executed. Dr. Hoffman stated that "it would be hard to not see some signs of depression in anyone who is in this state of cancer," and Mr. Jones "seemed to be somewhat depressed, which is understandable considering he has been an extremely active gentleman all his life." Dr. Hoffman further maintained, "I don't think he was the normal outgoing person or type of person he was six months ago. I didn't ever see him then, but I would imagine that there was some depression."

Following Mr. Jones's death, propounder Joseph McLeod submitted the March Will for probate on 14 October 2005. Shortly thereafter, Mrs. Jones filed a caveat to the March Will alleging that the September Will had expressly revoked the prior will and was therefore the valid last will and testament of Mr. Jones. Mr. McLeod was a propounder of the March Will and the caveator of the September Will; Mrs. Jones was the caveator of the March Will and the propounder of the September Will. On 20 October 2006, in response to Mrs. Jones's July motion for summary judgment, the trial court concluded that there was no genuine issue of fact as to whether Mr. Jones was unduly influenced by Mrs. Jones in executing the September Will. Accordingly, the trial court granted summary judgment to Mrs. Jones and ordered the Clerk of the Superior Court in Johnston County to accept the September Will for probate.

Mr. McLeod appealed, arguing that the trial court committed reversible error in concluding that (1) the September Will was not executed under undue influence exerted by Mrs. Jones; (2) Mr. Jones had the testamentary capacity to execute the September Will; and (3) summary judgment on the issue of devisavit vel non was appropriate despite evidence of undue influence and lack of capacity. In a divided opinion, the Court of Appeals affirmed the trial court's grant of summary judgment as to each issue. In re Will of Jones, ___ N.C.App. ___, ___, 655 S.E.2d 407, 419 (2007). The Court of Appeals majority concluded that Mr. McLeod had "failed to present specific facts showing that Mr....

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