In the Matter of Estate of McIntosh, No. COA08-638 (N.C. App. 4/7/2009)
| Decision Date | 07 April 2009 |
| Docket Number | No. COA08-638,COA08-638 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF THE ESTATE OF MOIRA P. McINTOSH |
Caveator appeals from a portion of an order entered 21 August 2007 granting partial summary judgment with respect to the issue of testamentary capacity and Propounder appeals from another portion of the same order declining to grant summary judgment with respect to the issue of undue influence. We affirm in part and reverse in part.
Moira P. McIntosh (McIntosh) died at age 82 on 14 October 2004 from complications stemming from congestive heart failure, chronic obstructive pulmonary disease and depression. Two days before her death, McIntosh signed a will leaving her entire estate to her daughter, Eleanor Fulcher (Propounder), who had lived with McIntosh for approximately three years before her death. McIntosh's son, James B. Lawrence, Jr. (Caveator), was not named as a beneficiary in the will or in an earlier will executed on 2 September 1991.
Caveator filed a caveat challenging the 12 October 2004 will. After discovery was conducted, Propounder moved for summary judgment on the issues of testamentary capacity and undue influence. On 8 February 2008, the trial court entered an order granting Propounder's motion with respect to the testamentary capacity issue and denying Propounder's motion with respect to the undue influence issue. Both Caveator and Propounder appeal from the order entered by the trial court.1
Summary judgment is appropriate where there is no genuine issue of material fact and where the movant is entitled to judgment as a matter of law. See Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). According to established law, we review the record in the light most favorable to the nonmovant. See Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).
An individual possesses the capacity to make a valid will if "[She] (1) comprehends the natural objects of [her] bounty, (2) understands the kind, nature and extent of [her] property, (3) knows the manner in which [she] desires [her] act to take effect, and (4) realizes the effect [her] act will have upon [her] estate." In re Will of Jarvis, 334 N.C. 140, 145, 430 S.E.2d 922, 925 (1993). "[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 Will of Sechrest, 140 N.C. App. 464, 473, 537 S.E.2d 511, 517 (2000). However, to establish a lack of testamentary capacity, a caveator need only show that one of the essential elements of testamentary capacity is lacking. In re Will of Kemp, 234 N.C. 495, 499, 67 S.E.2d 672, 675 (1951); see also In re Will of Shute, 251 N.C. 697, 699, 111 S.E.2d 851, 853 (1960) (). As a result, in order to prove lack of testamentary capacity, the caveator must "present specific evidence relating to testat[rix's] understanding of [her] property, to whom [she] wished to give it, and the effect of [her] act in making a will at the time the will was made." In re Will of Buck, 130 N.C. App. 408, 413, 503 S.E.2d 126, 130 (1998). "[G]eneral testimony concerning testat[rix's] deteriorating physical health and mental confusion in the months preceding the execution of the will" does not suffice to show the absence of sufficient mental capacity to make a valid will. Will of Buck, 130 N.C. App. at 413, 503 S.E.2d at 130; see also In re Will of Smith, 158 N.C. App. 722, 725, 582 S.E.2d 356, 359 (2003); In re Estate of Whitaker, 144 N.C. App. 295, 298, 547 S.E.2d 853, 857 (2001). "[However], evidence of incapacity within a reasonable time before and after is relevant and admissible insofar as it tends to show mental condition at the time of execution of the will." In re Coley, 53 N.C. App. 318, 324, 280 S.E.2d 770, 773 (1981) (citation omitted).
The Caveator contends that evidence in the record suffices to support a jury conclusion that McIntosh lacked sufficient testamentary capacity to make a valid will on 12 October 2004. Ms. Tracy Pigott (Pigott), Propounder's daughter, signed an affidavit in which she indicated that at the time that McIntosh executed a deed of trust securing a loan on the family residence in June 2004, she heard McIntosh ask "on three separate occasions, `What am I signing?'" In addition, Pigott stated that she was present when Mr. Wheatly "came to my Grandmother's house . . . about my Grandmother signing a will." Pigott stated that "[o]n the day that Mr. Wheatly was at my Grandmother's house, when I came in, I looked at my Grandmother and she was just staring into space."2 In addition, Caveator stated in his own affidavit that he had "visited [McIntosh] on numerous occasions throughout the years and observed both her health and mental condition declining." According to Caveator, McIntosh "was very ill and depressed" "during 2004" and "was not fully in touch with reality." "In talking with [McIntosh] during the year 2004 and observing her in general, she would not remember anything that [Caveator] told her and repeatedly asked the same question over and over again." McIntosh "told me on one occasion that she had built my house when she had nothing to do with the construction or financing of my house." He further stated that, in 2003, "my mother gave my children checks for Christmas presents and these checks bounced and were returned for insufficient funds." Caveator asked McIntosh "why she had mortgaged her house" in August 2004. However, McIntosh "never gave me an answer but looked at [Propounder] each time I asked this question." He then stated that, "[i]n my opinion, my mother did not know that she had mortgaged her house." According to Caveator, McIntosh did not know "what she owned or how much money she had" during 2004. "At the time of [McIntosh's] death, Caveator said that "she was 84 years of age and was severely, physically limited and was mentally weak." All of this testimony was relevant on the issue of whether McIntosh possessed the mental capacity to make a will.
We believe that the record discloses the existence of a genuine issue of material fact as to whether McIntosh understood the kind, nature and extent of her property. When taken in the light most favorable to the Caveator, the forecasted evidence shows that McIntosh was in a period of generally declining physical and mental health, that McIntosh had claimed in 2004 to have made payments for the use and benefit of Caveator when no such payments had actually been made, that checks given by McIntosh to Caveator's children for Christmas in 2003 were not supported by sufficient funds, that McIntosh expressed confusion about the nature of a loan transaction in which she participated approximately four months prior to the execution of the disputed will, that McIntosh was unable to explain why she had used her residence to secure this loan or even understand that she had mortgaged her house, and that McIntosh was seen simply staring off into space on the date that she executed the disputed will. The evidence forecast by the Caveator, if believed, would suffice to establish repeated instances, beginning at least a year before the date upon which the disputed will was executed, in which McIntosh demonstrated a lack of understanding of the nature and extent of her property. The evidence forecast by the Caveator establishes more than the attempt to devise property not owned by the testator at issue in In re Will of Harrington, 252 N.C. 105, 113 S.E.2d 21 (1960); the limited number of instances of confusion coupled with generally declining physical and mental health at issue in In re Will of Jones, 188 N.C. App. 1, 655 S.E.2d 407 (2008), rev'd on other grounds, 362 N.C. 569, 669 S.E.2d 572 (2008); the evidence of occasional drunkenness and periodic math errors at issue in Will of Sechrest, 140 N.C. App. 464, 537 S.E.2d 511; and the instances of forgetting what the testator owned coupled with generally declining physical and mental health at issue in Will of Buck, 130 N.C. App. 408, 503 S.E.2d 126. Instead, the evidence forecast by Caveator more closely resembles the repeated instances in which the testator failed to understand the nature and extent of his property at issue in Will of Jarvis, 334 N.C. 140, 430 S.E.2d 922. "Whether caveator['s] witnesses were credible and whether the evidence, viewed in the light most favorable to caveator[], was sufficient to rebut the presumption of [McIntosh's] testamentary capacity, were questions for the jury[.]" Will of Jarvis, 334 N.C. at 147, 430 S.E.2d at 925. Because there is a genuine issue of material fact as to whether McIntosh understood the nature and extent of her property, thus casting into doubt whether she had the mental capacity necessary to make a valid will, we hold that it was error for the trial court to grant Propounder's motion for summary judgment relating to the testamentary capacity issue.
Undue Influence:
We now must determine whether Caveator forecast sufficient evidence that the 12 October 2004 will resulted from undue influence to overcome Propounder's motion for summary judgment. We conclude that he did.
The first issue we must address is whether the Propounder has properly perfected her appeal from the trial court's order concerning the undue influence issue. The record...
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