Matter of Will of Buck

• Decision Date: 04 August 1998
• Docket Number: No. COA97-1013.,COA97-1013.
• Citation: 130 NC App. 408,503 S.E.2d 126
• Parties: In the Matter of the Will of Calvin H. BUCK.
• Court: North Carolina Court of Appeals

503 S.E.2d 126

130 NC App. 408

In the Matter of the Will of Calvin H. BUCK.

No. COA97-1013.

Court of Appeals of North Carolina.

August 4, 1998.

Baker, Jenkins, Jones & Daly, P.A. by Bruce L. Daughtry, Rocky Mount, and Ronald G. Baker, Ahoskie, and Roger A. Askew, Rocky Mount, for propounders-appellees.

Abbott, Mullen, Brumsey & Small, P.L.L.C. by H.T. Mullen, Jr., Elizabeth City; H. Spencer Barrow; and George B. Currin, Raleigh, for caveator-appellant.

JOHN C. MARTIN, Judge.

Calvin H. Buck died on 23 December 1995, survived by his daughter, Sandra Buck Jordan, and four sons, Kenneth Buck, Mallory Buck, Ronald Gene Buck and Joseph Buck. On 4 January 1996, Mallory Buck presented for probate a paper writing purporting to be the last will and testament of Calvin H. Buck. The paper writing, dated 13 November 1995, named Mallory Buck as executor and divided testator's estate equally among three of his four sons, Mallory Buck, Kenneth Buck and Ronald Gene Buck. No provision was made for Joseph Buck or for Sandra Buck Jordan.

On 8 January 1996, Sandra Buck Jordan filed a caveat to the will, alleging that the testator had lacked testamentary capacity and that the will had been procured by undue influence upon the testator by Kenneth Buck, Mallory Buck and Ronald Gene Buck. A jury returned a verdict in favor of caveator, finding that testator had lacked sufficient mental capacity to execute the purported will and that the purported will had been procured by undue influence and was therefore invalid. Propounders moved for judgment notwithstanding the verdict and for a new trial. The trial court granted judgment notwithstanding the verdict, ordering the paper writing to be admitted to probate in solemn form, and conditionally allowed the motion for a new trial. Caveator appeals.

In her brief, caveator presents two questions for our review, neither of which contains any reference to the assignments of error pertinent thereto as required by N.C.R.App. P. 28(b)(5). The assignments of error contained in the record on appeal could, therefore, be deemed abandoned and the appeal dismissed. N.C.R.App. P. 28(b)(5); Hines v. Arnold, 103 N.C.App. 31, 404 S.E.2d 179 (1991); State v. Shelton, 53 N.C.App. 632, 281 S.E.2d 684 (1981), appeal dismissed and disc. review denied, 305 N.C. 306, 290 S.E.2d 707 (1982)

. In our discretion, however, we will suspend the requirements of the rule in this case and consider appellant's arguments. N.C.R.App. P. 2.

I.

By her first argument, which presents the second assignment of error contained in the record on appeal, caveator contends the court erred in allowing propounder's argument for judgment notwithstanding the verdict on the issues of testamentary capacity and undue influence. A judgment notwithstanding the verdict is essentially a directed verdict granted after the jury verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985). The standard of review of a trial court's ruling upon a motion for judgment notwithstanding the verdict is the same as that upon a motion for a directed verdict, Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986); both motions test the legal sufficiency of the evidence to present an issue for the jury and to support a verdict for the non-moving party. Hines v. Arnold, supra.

The evidence is to be considered in the light most favorable to the nonmovants, giving them the benefit of all reasonable inferences, and resolving all contradictions and conflicts in the evidence in their favor. In re Andrews, 299 N.C. 52, 261 S.E.2d 198 (1980).

In a caveat proceeding, the burden is on the propounder of the will to establish that the paper writing offered as the testator's last will and testament was executed according to law. In re Will of Coley, 53 N.C.App. 318, 280 S.E.2d 770 (1981). If the propounder shows the will to have been properly executed according to the formalities required, the burden shifts to the caveator to prove that the testator lacked testamentary capacity or that the execution of the will was procured by undue influence. Id.; Andrews, supra. In this case, the proper execution of the will was not at issue.

In granting the motion for judgment notwithstanding the verdict, the trial court entered a lengthy "Memorandum of Decision and Order" in which it summarized the conflicting evidence offered during the trial of this action in which forty-six witnesses were called by the parties. In concluding the caveator had offered insufficient evidence that testator lacked testamentary capacity, the court noted opinion testimony of expert medical witnesses, as well as lay witnesses, on the issue. Because we are required, in reviewing the trial court's ruling on propounder's motion for judgment notwithstanding the verdict, to consider the evidence in the light most favorable to caveator, we need only recite evidence which tends to support her claims that testator lacked testamentary capacity and that the will was procured by undue influence.

Such evidence tended to show that on 27 March 1989 testator executed a will which left some land to his son Mallory, his homeplace to two of his grandchildren, and the bulk of his property to his daughter, Sandra Jordan. In 1990, he executed a codicil in which he provided that his home-place would go to his son, Ronald Gene. Beginning in October 1994, testator suffered a decline in physical and mental health, including a "ministroke" in October 1994 and a stroke in May 1995, both requiring hospitalization. There was evidence that, following these incidents, there were periods when testator seemed confused, childlike and not like himself. At times, testator was not aware of certain things, such as the identity of former presidents; was forgetful and was unable to remember short lists of items designed to test his short-term memory; became angry and emotional over inconsequential matters and would cry; and often gave conflicting instructions. Caveator testified that during one conversation with her, testator did not remember that he owned a mobile home from which he received rent. He was unable to care for himself. On two occasions, he made inappropriate sexual advances to his live-in caretaker, Ophelia Bell. He told Ms. Bell that he had made certain transfers of his property to his children although he had not done so.

After a family meeting on 4 November 1995, at which testator, caveator and Kenneth Buck quarreled over financial matters, Kenneth Buck contacted attorney Charles Moore and made an appointment for testator to meet with him. On 9 November, testator, accompanied by Kenneth Buck, Mallory Buck and Ronald Gene Buck, was driven to Mr. Moore's office. The three sons were present with testator when he told Mr. Moore that he wished to make a new will, leaving nothing to caveator and leaving his entire estate to be divided among the three sons. Mr. Moore testified that all three sons spoke up during the meeting, interjecting to caveator's statements remarks such as: "Don't you mean this" or "don't you mean that." He also told Mr. Moore to prepare a new power of attorney naming Ronald Gene Buck as his attorney-in-fact; caveator had previously held her father's power of attorney. On 13 November 1995, testator was again driven to Mr. Moore's office, accompanied by Mallory, Ronald Gene, Kenneth, and their wives, where he signed the will and power of attorney. There was evidence tending to show that caveator was never permitted to be alone with testator after the 4 November family meeting until his death; on each occasion when caveator visited with her father, one of her brothers or sisters-in-law was present.

While we have recited, in the light most favorable to caveator, only the evidence tending to support her claims, we quickly acknowledge the sharply conflicting evidence offered by propounders. However, it is neither our function, nor that of the trial court, to weigh the evidence when considering the motion for judgment notwithstanding the verdict.

A.

A testator has testamentary capacity if he comprehends the natural objects of his bounty; understands the kind, nature and extent of his property; knows the manner in which he desires his act to take effect; and realizes the effect his act will have upon his estate. In re Will of Shute, 251 N.C. 697, 111 S.E.2d 851 (1960). "Where the issue is the mental capacity of the (testator) at the time of making the will, 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." Coley, at 324, 280 S.E.2d at 774. The law presumes every person has sufficient capacity to make a valid will, and those contesting the will have the burden of proving otherwise.

There was ample evidence in the present case indicative of testator's declining mental and physical health in the months preceding his execution of the proffered will. However, in order to establish a lack of testamentary capacity, it is necessary to present specific evidence relating to testator's understanding of his property, to whom he wished to give it, and the effect of his act in making a will at the time the will was made. In re Will of York, 231 N.C. 70, 55 S.E.2d 791 (1949); Coley, supra. In the present case, caveator presented only general testimony concerning testator's deteriorating physical health and mental confusion in the months preceding the execution of the will, upon which her witnesses based their opinions as to his mental capacity. However, her evidence, while showing testator's weakened physical and mental condition in general, did not negate his testamentary capacity at the time he made the will, i.e., his knowledge of his property, to whom he was giving it, and the effect of his act in making a will. Therefore, caveator's evidence was insufficient to make out a prima facie case of lack of testamentary capacity and the trial court did not err by granting...