IN THE MATTER OF BARNES

• Decision Date: 15 April 2003
• Docket Number: No. COA01-1437.,COA01-1437.
• Citation: 157 NC App. 144,579 S.E.2d 585
• Court: North Carolina Court of Appeals
• Parties: In the Matter of the Purported Last Will and Testament of Francis M. BARNES, Dated November 22, 1989 and In the Matter of the Purported Last Will and Testament of Francis M. Barnes, Dated May 25, 1967.

579 S.E.2d 585

157 NC App. 144

In the Matter of the Purported Last Will and Testament of Francis M. BARNES, Dated November 22, 1989 and In the Matter of the Purported Last Will and Testament of Francis M. Barnes, Dated May 25, 1967.

No. COA01-1437.

Court of Appeals of North Carolina.

April 15, 2003.

Bass, Bryant & Fanney, by John Walter Bryant, Raleigh, and Batts, Batts, & Bell, LLP, by Jeffrey A. Batts, Joseph L. Bell, Jr., and Wendy P. Wilson, Rocky Mount, for Propounders of 1989 Will of Estate of Francis M. Barnes, appellant-appellee.

Poyner & Spruill, LLP, by Nancy Bentson Essex and Gregory S. Camp, Rocky Mount, for Church of the Advent (aligned Propounder of 1989 Will of Estate of Francis M. Barnes), appellant-appellee.

The Blount Law Firm, PLLC, by Marvin K. Blount, Jr., Ted E. Mackall, Stephen J. Batten, Greenville, for Caveators to 1989 Will of Francis M. Barnes/Beneficiaries of 1967 Will of Francis M. Barnes, appellee-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Charles J. Murray, for the State of North Carolina, appellee-appellant.

Gaylord, McNally, Strickland, Snyder, & Holscher, LLP, by Danny D. McNally, Emma S. Holscher, and Browning & Hill, LLP, by Myron T. Hill, Jr., Greenville, and Emmanuel & Dunn, by Stephen A. Dunn, Raleigh, and Dunn & Dunn, by Raymond E. Dunn, New Bern, for Heirs-at-law to Estate of Francis M. Barnes, appellees.

WYNN, Judge.

This appeal arises from a jury determination that two wills purportedly executed by Francis M. Barnes were invalid, thus resulting in a determination that Mr. Barnes died intestate leaving his estate valued at over $24 million to his heirs-at-law. Following the presentation of a will executed by Francis M. Barnes in 1989 ("the 1989 Will")¹ and issuance of testamentary letters by the Clerk of the Superior Court, Martin County, the beneficiaries under a copy of a will executed by Mr. Barnes in 1967 ("the 1967 Will")² filed a caveat against the 1989 Will.

After several days of trial, the jury agreed with the caveators ("the 1967 Will Beneficiaries") that the 1989 Will had been procured by undue influence; however, the jury gave the 1967 Will Beneficiaries a short-lived victory by further finding that the 1967 Will had been revoked by Mr. Barnes. Both parties appeal; furthermore, the heirs-at-law to the Estate of Francis M. Barnes join in this appeal in support of both verdicts of the jury.

After carefully reviewing this appeal, we hold that the trial court erred by permitting the 1967 Will Beneficiaries to proceed against the 1989 Will without first rebutting the presumption that they lacked standing to caveat attendant to their production of a mere copy of the 1967 Will. For the reasons stated herein, we vacate the judgment of the trial court and remand this matter for entry of judgment in favor of the propounders of the 1989 Will ("the 1989 Will Propounders").³

I. Facts and Procedural Posture

The underlying facts show that Mr. Barnes died on 17 October 1996; thereafter, a will, dated 22 November 1989, was offered for probate with testamentary letters issued on 30 November 1996. On 17 September 1998, the beneficiaries to a will, executed on 25 May 1967, offered a copy of the 1967 Will and sought to file a caveat against the 1989 Will. On 12 July 1999, the Clerk of the Superior Court, Martin County, gave notice of the caveat proceeding to all interested parties under the 1989 and 1967 Wills pursuant to N.C. Gen.Stat. § 31-33 (2002). In July 1999, the Athletic Fund of East Carolina University aligned itself with the Propounders of the 1967 Will, and The Church of the Advent aligned itself with the Propounders of the 1989 Will.

On 4 August 2000, Superior Court Judge Jerry Tillet ordered the parties to mediate the dispute; as a result, the parties reached a preliminary settlement on 4 September 2000. Thereafter, a copy of the agreement was circulated, minor changes made, and all parties, including Judge Tillet, signed the settlement except the 1967 Will Beneficiaries. On 19 September 2000, the 1967 Will Beneficiaries fired their attorney; hired Attorney Marvin Blount as counsel; and rejected the settlement offer. In January 2001, the Chief Justice of the Supreme Court of North Carolina designated the caveat proceeding as "exceptional," and assigned the matter to special emergency Superior Court Judge John B. Lewis, Jr. Thereafter, Judge Lewis denied the 1989 Will Propounders' Motion to Enforce Settlement and set the dispute for trial.⁴ On 23 January 2001, the Clerk of the Superior Court, Martin County, mailed a Supplemental Citation to Mr. Barnes' heirs-at-law: Lucy Tull (first cousin once removed), Riley S. Coddry (lineal descendant of Barnes' paternal aunt), and Diane Barnes Grau (lineal descendant of Barnes' paternal aunt). The Supplemental Citation gave Mr. Barnes' heirs-at-law notice of the caveat, and informed them of their statutory right to "appear and align [themselves] with the Propounder of the 1989 Will, the Caveators of [the] 1989 Will ... or [to] identify [themselves] as a Caveator to the 1967 Will." The heirs-at-law neither aligned themselves with any of the parties to the proceeding, nor did they identify themselves as Caveators to the 1967 Will.

In pretrial motions, the 1989 Will Propounders argued, as a preliminary question of standing, that the 1967 Will Beneficiaries should have to overcome the presumption that the 1967 Will was revoked by Mr. Barnes, and, therefore, the 1967 Beneficiaries did not have standing to challenge the 1989 Will by caveat. The 1989 Will Propounders argued that "if this jury finds [that the 1967 Will] was intentionally revoked, then the [caveat proceeding should] stop[ ] there." The trial court, however, did not address the issue of standing, and, instead, declared that the 1967 Will Beneficiaries were clearly "interested parties" under the statute. Accordingly, the trial court bifurcated the trial and allowed the jury to first determine whether the 1989 Will was valid; if not, then the jury would secondly determine whether the 1967 Will had been revoked.

At the trial, held 29 January 2001 through 22 February 2001, the 1989 Will Propounders offered evidence that the 1989 Will was valid and attested. Joseph Thigpen testified he assisted Mr. Barnes in drafting the 1989 Will. Mr. Thigpen, and two attorneys (James Bachelor and Melvin Bowen), testified that Attorney James Bachelor who drafted the 1989 Will, read aloud each provision of the 1989 Will to Mr. Barnes and received his approval before making any changes or moving on to a subsequent provision. Moreover, all three witnesses testified that Mr. Barnes, on the day of execution, knew his property, who he wanted to have that property, and the natural objects of his bounty.

Francis Long, a longtime friend of Lucille and Francis Barnes, testified for the 1989 Will Propounders that Mr. Barnes "had a fit and tore up the [1967] Will" in 1983 or 1984. The 1989 Will Propounders offered this testimony, over the objection of the 1967 Will Beneficiaries, to establish the chain of events leading up to the writing and drafting of the 1989 Will. The trial court rejected the 1967 Will Beneficiaries contention that Mrs. Long's testimony was barred by North Carolina's Dead Man's Statute. Instead, the trial court held that Mrs. Long's "testimony [was] inherently admissible" because it was against her pecuniary interest since she would take twenty percent under the 1967 Will, but only ten percent under the 1989 Will.

Thus, the 1989 Will Propounders established a prima facie case that the 1989 Will was valid, attested, and properly in probate. To rebut the prima facie case of the 1989 Will's validity, the 1967 Will Beneficiaries presented evidence that Mr. Barnes was unduly influenced by Mr. Thigpen and lacked testamentary capacity. Specifically, the 1967 Will Beneficiaries elicited evidence tending to show that Mr. Thigpen occupied a fiduciary relationship with Mr. Barnes, and he substantially benefitted from the 1989 Will which he helped draft. The evidence showed that the 1989 Will named Mr. Thigpen as executor and trustee of the testamentary trust, with compensation for both positions. Moreover, Mr. Thigpen was granted complete discretion in the amount, type, and organizations to fund with the charitable contributions. In addition, the 1989 Will named Mr. Thigpen as a member of the "scholarship selection committee," and gave him the discretionary power to appoint one of the other two members of the committee. Mr. Thigpen used this discretion to appoint his son, Joel Thigpen, as the other member of the scholarship selection committee.

Accordingly, the 1967 Will Beneficiaries argued that the 1989 Will gave Mr. Thigpen de facto authority over a substantial portion of Mr. Barnes' multi-million dollar estate, as well as an unprecedented position of authority and power in Martin County to donate to charities of his choice, and to award scholarships to children and families of his choice. The 1967 Will Beneficiaries contended that Mr. Barnes did not bestow this power upon Mr. Thigpen independently. Rather, they argued, Mr. Thigpen took advantage of a mentally incapacitated man, and, through undue influence, created a will making him one of the most powerful individuals in Martin County.

Second, the 1967 Will Beneficiaries offered the testimony of nine witnesses who opined that Mr. Barnes lacked testamentary capacity to make the 1989 Will. For instance, John Roney, Mr. Barnes' stockbroker and close friend, testified that he had a consistent relationship with Mr. Barnes between 1969 and 1989. Mr. Roney testified that, in his opinion, Mr. Barnes lacked mental capacity in 1989 to understand the effect of a will or the natural objects of his bounty. In support of this opinion, Mr. Roney testified he had contact with Mr. Barnes two or three times a week and, after 1980, Mr. Barnes began a process of slow mental deterioration resulting in...