                            NO. COA 13-1149

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 5 August 2014


IN THE MATTER OF THE                     Union County
PURPORTED WILL OF RUBY                   No. 10 E 230
SHAW SHEPHERD,
     Deceased.



    Appeal by        Caveator from Order entered 12 April 2013         by

Judge W. David Lee in Union County Superior Court. Heard in the

Court of Appeals 19 February 2014.


    Wall Esleeck Babcock LLP, by Andrew L. Fitzgerald, and
    Hickmon & Perrin, PC, by James E. Hickmon, for Caveator.

    Helms, Robison & Lee P.A., by R. Kenneth Helms, Jr., and
    Aimee E. Brockington, for Propounder.


    STEPHENS, Judge.


            Factual Background and Procedural History

    This appeal arises from a caveat proceeding challenging the

will of Ruby Shaw Shepherd (“Decedent”). Decedent died on 21

February 2010 in Fort Myers, Florida. At the time of her death,

Decedent   was   a    resident   of   Union   County,   North   Carolina.

Decedent is survived by her husband           of nearly thirty years,

Caveator James A. Shepherd, and four children from a previous

marriage, including Propounder Angela Caroline Jeffers Bullock.
                                           -2-
      On   7   April    2010,    Propounder      filed    in   the   Union   County

Superior Court clerk’s office an application for probate and

letters    testamentary        and   a    document   entitled    “Last     Will   and

Testament of Ruby Shaw Shepherd,” which purported to be the will

of Decedent. The purported will made no mention of Caveator and

named Propounder as the executrix of Decedent’s estate. With the

exception      of    several    specific     devises     of    tangible    personal

property, the purported will provided that Decedent’s estate was

to be divided equally among her four children. The clerk of

superior court admitted the purported will to probate in the

common form in the Estates Division of the Superior Court of

Union County.1

      Caveator filed a verified petition for an elective share on

18 June 2010, seeking a statutory spousal elective share from

the   estate    of    Decedent.      In   Caveator’s     petition    for   elective

share, he stated that Decedent “died testate . . . and [that]

her Last Will and Testament was probated on April 7, 2010.”




1
  Although the application for probate and letters testamentary
are included in the record, the certificate of probate and the
letters testamentary are not. Thus, this Court has no
information in the record to verify the date that the purported
will was admitted to probate. We must assume from the
progression of the probate of the purported will that a
certificate of probate was issued.
                                  -3-
    Propounder filed the inventory for Decedent’s estate and an

addendum thereto on 14 September 2010. The inventory indicated

that Decedent’s estate contained total assets in the amount of

$1,894,928.97.

    Caveator filed a caveat to the purported will of Decedent

on 29 October 2010.     In his petition,        Caveator alleged that,

“[u]pon   information   and   belief,   [Decedent’s    purported   will]

. . . is not the Last Will and Testament of Ruby Shaw Shepherd”

because Decedent either did not sign the purported will, or, if

she did, she did so under “undue and improper influence and

duress.” Propounder filed an answer to the caveat on 19 November

2010. Subsequently, an order was entered sua sponte by the clerk

of superior court on 3 December 2010 staying the hearing on

Caveator’s petition for an elective share until the resolution

of the caveat action.2 Propounder appealed from this order to the

trial court.3 The trial court entered an order on 21 January 2011

reversing    the   clerk’s     stay     order    and   remanding     the

administration of the estate and the petition for elective share

2
  The clerk’s 3 December 2010 order also stayed hearing on a
petition for recovery of estate assets filed by Propounder. No
copy of this petition is included in the record.
3
   Although both briefs indicate Propounder appealed the 3
December 2010 order, no copy of the notice of appeal is included
in the record to indicate the date or grounds for said appeal.
                                           -4-
to the clerk for further proceedings consistent with the trial

court’s reversal order. Following the trial court’s reversal of

the   stay    order,         Caveator    filed    a     motion   to    compel    partial

payment of the spousal elective share, to compel payment of

expert    fees,        for    issuance    of     an    order   to     show   cause,   for

revocation        of     Propounder’s       letters         testamentary,       and   for

attorneys’ fees. In this motion, Caveator referred to the paper

writing offered for probate as the “Decedent’s purported will.”

Caveator also referred to the paper writing as the purported

will in his memorandum in support of the motion for partial

payment      of    the       spousal     elective       share;      however,    Caveator

calculated the spousal elective share                       based on     the value of

property      passing         according     to        the   probate     of     Decedent’s

purported will.4 Caveator’s motion for partial payment of the

spousal elective share was continued by the clerk of court until

the   parties          engaged    in     mediation.         Caveator’s       motion   for

4
  Calculation of the elective share is defined in Article 1A of
Chapter 30 of the North Carolina General Statutes. The share to
which a surviving spouse is entitled is diminished by the
property he or she is already receiving, either under the
probate estate, by intestate succession, or by other means.
Here, Caveator received nothing under the purported will.
However, his share received by intestate succession would be
approximately one-third of the estate. See N.C. Gen. Stat. § 29-
14 (2013). Therefore, the calculation of the elective share
would differ depending on which way Caveator was to receive
property.
                                           -5-
attorneys’      fees     was    granted,       and    his      remaining      motions    were

denied.

    On 19 December 2012, the clerk of court entered an “Order

Determining Elective Share” whereby the spousal elective share

was calculated to be $36,028.93 and Propounder, as Executrix of

the Estate of Decedent, was ordered to pay the whole amount to

Caveator.       The     clerk’s       order     did       not       mention    the    caveat

proceeding, and the clerk calculated the elective share based on

the values of the probate estate, wherein no property passed to

Caveator under the purported will.

    Following the order for payment of the spousal elective

share, Propounder filed a motion for summary judgment as to the

caveat     on     8   March     2013.     In    her       summary       judgment      motion,

Propounder argued that Caveator was estopped from pursuing the

caveat because his position that the purported will was not

valid was inconsistent with the position he maintained in the

elective    share       action.    Caveator          filed      a    memorandum      opposing

Propounder’s motion for summary judgment on 21 March 2013. The

trial     court       entered    an     order        on   12        April   2013     granting

Propounder’s motion. Caveator appeals.

                                        Discussion
                                       -6-
    On appeal, Caveator argues that the trial court (1) erred

in granting summary judgment in favor of Propounder on grounds

that the doctrine of election of remedies bars Caveator from

sustaining the caveat action, and (2) abused its discretion by

holding      that   the   doctrine    of    judicial   estoppel    also     barred

Caveator from sustaining the caveat action.5 Caveator contends

that the doctrine of election of remedies is not applicable in

the case sub judice because payment of a spousal elective share

and caveat of a will are not inconsistent remedies. Further,

Caveator contends that the doctrine of judicial estoppel is not

applicable in this case because Caveator did not make clearly

inconsistent factual assertions. We agree and reverse the order

of the trial court.

    I.        Election of Remedies

    Caveator        argues   that    the   trial   court   erred   in   granting

summary judgment on the basis of the doctrine of election of

remedies because a petition for payment of a spousal elective

share   is    not   inconsistent     with    the   institution     of   a   caveat

action to contest a will. In contrast, Propounder argues that

5
  In support of her motion for summary judgment, Propounder
argued that Caveator was estopped from pursuing the caveat
according to the equitable doctrines of election of remedies and
judicial estoppel. The trial court did not identify the grounds
on which summary judgment was granted in favor of Propounder.
                                       -7-
Caveator is estopped from pursuing the caveat action because it

is predicated on an “opposite and irreconcilable” position from

Caveator’s     position    in    the    elective     share   proceeding.     We

conclude     that   the   two    remedies    are    not   inconsistent     and,

therefore, that      the doctrine of election of remedies is not

applicable.

    “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that there is no genuine issue as to any material fact and

that any party is entitled to a judgment as a matter of law.” In

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)

(citation and internal quotation marks omitted; italics added).

    “The purpose of the doctrine of election of remedies is to

prevent more than one redress for a single wrong.” Triangle Park

Chiropractic v. Battaglia, 139 N.C. App. 201, 204, 532 S.E.2d

833, 835 (citation omitted), disc. review denied, 352 N.C. 683,

545 S.E.2d 728 (2000). “The whole doctrine of election is based

on the theory that there are inconsistent rights or remedies of

which a party may avail himself, and a choice of one is held to

be an election not to pursue the other. The principle does not

apply   to   coexisting    and    consistent       remedies.”   Pritchard    v.

Williams, 175 N.C. 319, 323, 95 S.E. 570, 571 (1918) (internal
                                    -8-
quotation marks omitted). “One is held to have made an election

of remedies when he chooses with knowledge of the facts between

two inconsistent remedial rights.” Lamb v. Lamb, 92 N.C. App.

680, 685, 375 S.E.2d 685, 687 (1989) (citation omitted). “[A]n

election of remedies presupposes a right to elect.” Competitor

Liaison Bureau of NASCAR, Inc. v. Midkiff, 246 N.C. 409, 414, 98

S.E.2d 468, 472 (1957) (citation and internal quotation marks

omitted). “A party cannot . . . occupy inconsistent positions. .

. . But the doctrine of election applies only where two or more

existing    remedies   are   alternative     and    inconsistent.     If    the

remedies are not inconsistent, there is no ground for election.”

Douglas v. Parks, 68 N.C. App. 496, 498, 315 S.E.2d 84, 85

(citation   omitted;   emphasis    added),    disc.      review   denied,   311

N.C. 754, 321 S.E.2d 131 (1984). “It is the inconsistency of the

demands    which   makes   the   election    of    one   remedial   right   an

estoppel against the assertion of the other . . . .” Richardson

v. Richardson, 261 N.C. 521, 530, 135 S.E.2d 532, 539 (1964)

(citation omitted).

            A plaintiff is deemed to have made an
            election of remedies, and therefore estopped
            from suing a second defendant, only if he
            has sought and obtained final judgment
            against a first defendant and the remedy
            granted in the first judgment is repugnant
            [to] or inconsistent with the remedy sought
            in the second action.
                                          -9-


Triangle Park Chiropractic, 139 N.C. App. at 203–04, 532 S.E.2d

at 835.

      Here, the issue is whether the pursuit of an elective share

based   on   the    administration        of    a   testate   estate    and   a   will

caveat are alternative and inconsistent remedies. “In general,

the   purpose      of   a   caveat   is   to    determine     whether   the   paper[

]writing purporting to be a will is in fact the last will and

testament of the person for whom it is propounded.” Baars v.

Campbell Univ., Inc., 148 N.C. App. 408, 419, 558 S.E.2d 871,

878 (citation, internal quotation marks, and brackets omitted),

disc. review denied, 355 N.C. 490, 563 S.E.2d 563 (2002). The

right to claim an elective share is a statutory right created by

section 30-3.1 which is given to “[t]he surviving spouse of a

decedent     who    dies    domiciled     in    [North   Carolina].”     N.C.     Gen.

Stat. § 30-3.1 (2013).6 The elective share is calculated as a

share of the decedent’s “Total Net Assets” subtracted by the

“Net Property Passing to Surviving Spouse,” as both terms are

defined by section 30-3.2. See N.C. Gen. Stat. § 30-3.1. Thus,

the surviving spouse’s elective share is reduced by the amount



6
  Section 30-3.1 was modified by 2013 N.C. Sess. Laws 91, §
1.(d), effective 1 October 2013. The modification is not
applicable to the issues on appeal in this case.
                                           -10-
of property he or she is already going to receive. The “Net

Property    Passing       to    Surviving        Spouse”    includes        property        “(i)

devised, outright or in trust, by the decedent to the surviving

spouse    or     (ii)    that     passes,       outright    or    in       trust,      to   the

surviving spouse by intestacy.” N.C. Gen. Stat. § 30-3.2(3c)

(2013).    By    including       both    property     devised         to    the    surviving

spouse    and     property       passing    by     intestate      succession           in   the

calculation of the elective share, it is clear from the plain

language of the statute that an elective share may be claimed by

a   surviving      spouse        whether     the     decedent         dies    testate        or

intestate.      See,     e.g.,    Bland     v.    Harold    L.    &    Audree       S.   Mills

Charitable Remainder Unitrust, __ N.C. App. __, 754 S.E.2d 259

(2014)     (unpublished         opinion),        available       at    2014       WL     220557

(holding that quasi-estoppel was inapplicable to bar a challenge

to the validity of a trust where distributions received by the

wife     were    less     than     the    elective        share       of   her     husband’s

intestate       estate    to     which    she     would    be    entitled        absent     the

trust); In re Estate of Hendrick,                    __ N.C. App. __, 753 S.E.2d

740 (2013) (unpublished opinion), available at 2013 WL 6237353

(holding that the wife was entitled to an elective share of the

husband’s       testate    estate    where        other    beneficiaries          failed     to
                                          -11-
establish grounds barring her entitlement).7                     Section 30-3.4(b)

also makes clear that a claim for an elective share is not

dependent    on    whether       the     decedent    dies      testate    because      it

requires that the claim be made within “six months after the

issuance    of    letters    . . .       in    connection       with     the   will    or

intestate    proceeding.”         N.C.    Gen.    Stat.     §    30-3.4(b)     (2013).

Indeed,    Propounder      concedes       in   her   brief      that     Caveator     was

entitled    to    pursue    an    elective       share    whether      Decedent     died

testate or intestate.            Because the caveat action               is meant      to

determine whether a purported will is in fact the will of a

decedent and the statutory right to claim an elective share does

not depend on whether a decedent dies with a will, we conclude

that the two remedies are not inconsistent.

    In this case, however, Caveator made a specific assertion

in his petition for elective share that Decedent “died testate”

even though he was entitled to pursue an elective share whether

Decedent died testate or not. On its face, this statement is

inconsistent with Caveator’s challenge to the will. Propounder

argues    that    such   inconsistency         estops    him    from     pursuing     the

7
  These opinions are unpublished and, thus, have no precedential
value. N.C.R. App. P. 30(e). Nonetheless, they provide helpful
examples of recent cases in which this Court has acknowledged
the entitlement of a surviving spouse to an elective share in
both testate and intestate estate administrations.
                                          -12-
caveat    action       as    an   impermissible     election            of   remedies.        We

disagree.

     Propounder’s           argument     is   misplaced           as    applied    to      the

doctrine    of     election       of    remedies.       As    discussed       above,      the

elective share proceeding is not an inconsistent and alternative

remedy     to    the    caveat     action.       Even    if       the    elective        share

proceeding were inconsistent with the caveat action, however,

Caveator’s assertion that Decedent died testate is irrelevant to

the clerk’s calculation of the elective share.

     “[P]robate is conclusive evidence of the validity of the

will,    until    it    is    vacated    on   appeal         or   declared     void      by   a

competent tribunal.”8 N.C. Gen. Stat. § 28A-2A-12 (2013). When

the clerk of superior court takes proof of a script and admits

it to probate in common form, it is an ex parte proceeding, and

the script “stands as the testator’s will, and his only will,

until challenged and reversed” by caveat. In re Will of Charles,

263 N.C. 411, 415, 139 S.E.2d 588, 591 (1965); see also Walters

v. Baptist Children’s Home of N.C., Inc., 251 N.C. 369, 377, 111

S.E.2d 707, 714 (1959) (“[T]he probate of a will by the [c]lerk

of   [s]uperior        [c]ourt     is    . . .    conclusive            evidence    of     the

8
  This statute was codified as N.C. Gen. Stat. § 31-19 in 2010,
when Decedent died. It was re-codified as N.C. Gen. Stat. § 28A-
2A-12, effective 1 January 2012, by 2011 N.C. Sess. Laws 344.
                                         -13-
validity of the will[] until vacated on appeal[] or declared

void by a competent tribunal in a proceeding instituted for that

purpose.”).

    Consistent with our statutes and established case law, the

trial court’s 21 January 2011 order, which reversed the stay of

the elective share proceeding until the resolution of the caveat

action,   concluded     that    probate        “of   the   [w]ill    is   conclusive

unless and until it is vacated on appeal or declared void by a

competent tribunal in a caveat proceeding.” In addition, the

trial court concluded, inter alia, that (1) the will had not

been set aside by the caveat because no determination had been

reached in that proceeding, (2) the filing of the caveat did not

stay the administration of the estate or the elective share

proceeding,   and     (3)    the   elective      share     proceeding     should   be

remanded to the clerk to proceed accordingly. As a result, the

clerk was obligated on remand to calculate the elective share in

accordance    with     the    probate      of    Decedent’s      purported     will,

regardless      of      Caveator’s        assertion        in       his    petition.

Consequently,        Caveator      had    no     “right     to   elect”      between

calculation of the elective share on the basis of a testate or

intestate estate administration. See, e.g., Competitor Liaison

Bureau of NASCAR, Inc., 246 N.C. at 414, 98 S.E.2d at 472.
                                            -14-
Though Caveator chose to pursue an elective share, that remedy,

alone, is not inconsistent with a caveat. Moreover, the doctrine

of election of remedies cannot be applied to bar the award of

the    elective    share       to      Caveator    based    solely      on   the    clerk’s

administration of Decedent’s estate as a testate estate. Indeed,

to the extent Caveator could have alleged an inconsistent remedy

in    his    petition    for      an    elective     share,   that      element     of    his

petition cannot work to bar his caveat proceeding when the clerk

had no choice but to calculate the elective share based on a

testate      estate     administration.           Accordingly,     we    hold      that   the

doctrine of election of remedies does not work to bar Caveator’s

challenge to the will.



       II.    Judicial Estoppel

       Caveator       also   argues       that     the     trial   court      abused      its

discretion by applying judicial estoppel as a bar to the caveat

action after the trial court ordered payment of the elective

share. In opposition, Propounder contends that judicial estoppel

was    properly       applied       because    Caveator       asserted       inconsistent

factual      positions       by     alleging       both     the    validity        and    the

invalidity of Decedent’s will. We disagree.
                                         -15-
      “[J]udicial     estoppel         is   to    be    applied     in    the   sound

discretion of our trial courts.” Whitacre P’ship v. Biosignia,

Inc., 358 N.C. 1, 33, 591 S.E.2d 870, 891 (2004). “[A] trial

court’s application of judicial estoppel is reviewed for abuse

of   discretion.”     Id.    at    38,      591    S.E.2d     at    894   (citations

omitted). “[W]hen a trial court has acted within its discretion

in   applying   judicial     estoppel,       leaving     no   triable     issues   of

material fact, summary judgment is appropriate.” Id. at 39, 591

S.E.2d at 895 (citations omitted). “If the trial court did not

abuse its discretion in determining that [judicial estoppel is

applicable], there are no triable issues of fact . . . as a

matter of law, rendering summary judgment appropriate.” Bioletti

v. Bioletti, 204 N.C. App. 270, 274, 693 S.E.2d 691, 694-95

(2010). “Where the essential element of inconsistent positions

is   not   present,   it    is    an   abuse      of   discretion    to   bar   [the]

plaintiff’s claim on the basis of judicial estoppel.” Estate of

Means v. Scott Elec. Co., 207 N.C. App. 713, 719, 701 S.E.2d

294, 299 (2010) (citation omitted).

      “[T]he purpose of the [judicial estoppel] doctrine [i]s to

protect the integrity of the judicial process by prohibiting

parties from deliberately changing positions according to the

exigencies of the moment.” Whitacre P’ship, 358 N.C. at 28, 591
                                   -16-
S.E.2d at 888 (citations and internal quotation marks omitted).

“[T]he     circumstances   under       which   judicial     estoppel     may

appropriately    be   invoked   are    probably   not   reducible   to   any

general formulation of principle.” T-Wol Acquisition Co. v. ECDG

South, LLC,        N.C. App.       ,      , 725 S.E.2d 605, 612 (2012)

(citation and internal quotation marks omitted). Nevertheless,

            our Supreme Court [has] set forth three
            factors    which    may   be     considered    in
            determining     whether    the     doctrine    is
            applicable:    First, a     party’s    subsequent
            position must be clearly inconsistent with
            its    earlier    position.    Second,     courts
            regularly inquire whether the party has
            succeeded in persuading a court to accept
            that party’s earlier position, so that
            judicial    acceptance   of    an   inconsistent
            position in a later proceeding might pose a
            threat to judicial integrity by leading to
            inconsistent court determinations or the
            perception that either the first or the
            second court was misled. Third, courts
            consider whether the party seeking to assert
            an inconsistent position would derive an
            unfair    advantage   or   impose     an   unfair
            detriment on the opposing party if not
            estopped.

Id. at __, 725 S.E.2d at 612-13 (citation omitted). “[T]hese

three factors do not establish inflexible prerequisites or an

exhaustive formula for determining the applicability of judicial

estoppel    and . . . additional       considerations     may   inform   the

doctrine’s application in specific factual contexts.” Whitacre
                                     -17-
P’ship, 358 N.C. at 29, 591 S.E.2d at 889 (citation and internal

quotation marks omitted). “The first factor, and the only factor

that is an essential element which must be present for judicial

estoppel to apply[,] is that a party’s subsequent position must

be clearly inconsistent with its earlier position.” Wiley v.

United Parcel Serv., Inc., 164 N.C. App. 183, 188, 594 S.E.2d

809, 812 (2004) (citation and internal quotation marks omitted).

“[J]udicial estoppel is limited to the context of inconsistent

factual assertions and . . . the doctrine should not be applied

to   prevent    the   assertion     of    inconsistent     legal    theories.”

Whitacre P’ship, 358 N.C. at 32, 591 S.E.2d at 890. When the

record   and     pleadings    are        examined    as    a     whole,    minor

discrepancies    in   a   position       consistently     maintained      do   not

amount   to     “clearly     inconsistent”          positions.     Harvey       v.

McLaughlin, 172 N.C. App. 582, 585, 616 S.E.2d 660, 663 (2005)

(holding that discrepancies in allegations in the plaintiff’s

complaint regarding the date of the onset of injury were not

clearly inconsistent positions where            the plaintiff maintained

one position as a whole), disc. review denied, 360 N.C. 289, 628

S.E.2d 250 (2006); see also Estate of Means, 207 N.C. App. at

720, 701 S.E.2d at 299 (holding that differences in allegations

of knowledge of the two defendants in a negligence action which
                                              -18-
were “in general           . . .       not inconsistent,” and meant to show

separate     duties       owed    by    each       defendant,         were     not    factually

inconsistent positions).

       Here, Caveator stated in his petition for an elective share

that   Decedent       “died      testate”          and    that       “her     Last    Will      and

Testament was probated on April 7, 2010.” Four months later,

however, Caveator stated in his caveat that Decedent “did not .

. . sign and execute said paper writing as her Last Will and

Testament”     and    that,      if     she    did,       it    was    due    to     “undue     and

improper     influence      and    duress.”          Propounder        argues        that    these

statements represent clearly inconsistent factual assertions. We

disagree.

       No   will     is   valid    unless          it    complies      with     the    relevant

statutory requirements. N.C. Gen. Stat. § 31-3.1. “[T]he [c]lerk

of   the    [s]uperior      [c]ourt          has    the       sole    power    in    the     first

instance     to    determine          whether       a     decedent       died       testate      or

intestate, and if he died testate, whether the script in dispute

is   his    will.”    Walters,         251    N.C.       at    376,    111    S.E.2d       at   713

(citation and internal quotation marks omitted). “[T]he probate

of a will by the [c]lerk of [s]uperior [c]ourt is a judicial

act, and his certificate is conclusive evidence of the validity

of the will, until vacated on appeal, or declared void by a
                                    -19-
competent tribunal in a proceeding instituted for that purpose.”

Id. at 377, 111 S.E.2d at 714; see also N.C. Gen. Stat. § 28A-

2A-12; In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1

(1970) (upholding the clerk’s denial of a motion by a group of

surviving family members to set aside probate of a holographic

will because there was no inherent or fatal defect appearing on

the face of the will and no caveat action was filed). “And until

so set aside it is presumed to be the will of the testator.”

Walters, 251 N.C. at 377, 111 S.E.2d at 714. In addition, “the

proper execution of [a] will [is] a mixed question of law and

fact.” Burney v. Allen, 127 N.C. 476, 478, 37 S.E. 501, 502

(1900); see also In re Will of Mucci, 287 N.C. 26, 213 S.E.2d

207 (1975) (holding that directed verdict as to whether a will

may   be   probated   is   the   best   procedure   when   no   evidence   of

testamentary intent is presented); In re Will of Deyton, 177

N.C. 494, 507, 99 S.E. 424, 430 (1919) (“But the facts must be

found by the jury, in order that we may pass upon the validity

of the paper[ ]writings as the will of the deceased.”); In re

Will of Mason, 168 N.C. App. 160, 606 S.E.2d 921 (holding that

directed verdict is appropriate as to the validity of a will

when there are no evidentiary issues to be resolved),                 disc.

review denied, 359 N.C. 411, 613 S.E.2d 26 (2005).
                                         -20-
      Here, Decedent’s purported will was admitted to probate by

the clerk of superior court before Caveator filed the petition

for   an    elective     share.9   By    admitting      the    purported     will    to

probate, the clerk made the determination that Decedent died

testate     and   that    the    purported      will   was    the   last   will     and

testament of Decedent. See, e.g., Walters, 251 N.C. at 377, 111

S.E.2d     at   714.    Caveator’s      statement      in   his   petition    for    an

elective share is consistent with the determination made by the

clerk and the legal presumption that the purported will is the

valid will of Decedent until set aside by a caveat action. See

id. Further, as the validity of a will is a mixed issue of law

and fact, Caveator’s statements that Decedent “died testate” and

that “her Last Will” was probated are not factual assertions as

to the will’s validity, and, therefore, judicial estoppel is not

applicable in this case.

      III. Receipt of a Benefit

      Caveator also argues that estoppel does not otherwise apply

to bar him from pursuing the caveat when he accepted property to

which he was already entitled. Propounder responds that estoppel

does,      in   fact,    apply   because     Caveator        actually   received      a



9
  According to the petition for an elective share, the purported
will was admitted to probate on 7 April 2010.
                                             -21-
“benefit under the will,” which bars him from thereafter seeking

to invalidate it. This response is incorrect.

    Although Propounder and Caveator make these arguments in

the context of the doctrine of election of remedies, the cases

cited     are   more      representative            of     the    principle     of    quasi-

estoppel. In defining quasi-estoppel, or “estoppel by benefit,”

the North Carolina Supreme Court has stated that, “[u]nder a

quasi-estoppel        theory,     a    party    who        accepts   a   transaction       or

instrument and then accepts benefits under it may be estopped to

take a later position inconsistent with the prior acceptance of

that same transaction or instrument.” Whitacre P’ship, 358 N.C.

at 18, 591 S.E.2d at 881-82 (citations and internal quotation

marks omitted). “[T]he essential purpose of quasi-estoppel is to

prevent     a    party      from       benefitting           by    taking     two clearly

inconsistent         positions.”       Id.     at        18-19,   591    S.E.2d      at   882

(citation, internal quotation marks, and ellipsis omitted). In

the context of a will, a party that has “judicially asserted

rights    consistent       with       the    validity        of    the   will     . . .    is

estopped,       in    a   subsequent         proceeding,          from   asserting        the

inconsistent position of disputing the will’s validity.” In re

Will of Lamanski, 149 N.C. App. 647, 650, 561 S.E.2d 537, 540

(2002) (citation omitted) [hereinafter Will of Lamanski]. The
                                         -22-
cases cited by Caveator further address the doctrine of quasi-

estoppel     in   the    specific      context   of   a   will    caveat       and   its

exceptions.

      In In re the Will of Peacock, a decedent’s son instituted a

caveat proceeding after receiving a check under the decedent’s

will.   18    N.C.      App.    554,   555,     197   S.E.2d     254,    255    (1973)

[hereinafter      Will     of     Peacock].      In    analyzing        whether      the

decedent’s son could be estopped from pursuing the caveat on

grounds that he had already taken under the will, this Court

observed that the share of the estate to which the decedent’s

son would be entitled would be greater than the amount of the

check he had already received                 if his caveat proceeding were

successful. Id. at 556, 197 S.E.2d at 255. Specifically, the

Court held that

             [the son’s] acceptance of a check for less
             than [the amount of his share of the
             intestate estate] could in no way prejudice
             his sisters in [the] event [the] probate of
             the will is subsequently set aside. Nothing
             in the circumstances indicates any reason
             why it would be inequitable for [the son] to
             proceed with his caveat.

Id.

      Similarly, in In re Will of Smith, this Court held that the

decedent’s daughter was not estopped from pursuing a caveat even

though she received a car under the will. 158 N.C. App. 722,
                                        -23-
724-25, 582 S.E.2d 356, 358 (2003) [hereinafter Will of Smith].

The Court observed that the daughter was entitled to the car

under   the    will   admitted     to     probate,     a    prior   will,    or    via

intestate succession. Id. Quoting Will of Peacock, the Court

further reasoned that, because the daughter’s caveat would not

change the disposition of the car, it was not inequitable for

her to receive the car and pursue the caveat. Id.

     Will     of   Lamanski    arose      in   a   slightly      different   factual

situation from Will of Smith and Will of Peacock. In Will of

Lamanski,     the decedent’s will gave her sister                   the    choice of

certain items of tangible personal property in the decedent’s

home.   149   N.C.    App.    at   647,    561     S.E.2d   at    538.    Under    that

provision,     the    decedent’s       sister      chose    specific      pieces    of

property, some of which were delivered to her pursuant to the

bequest. Id. at 648, 561 S.E.2d at 539. When the executrix of

the decedent’s will failed to deliver the other items, however,

the decedent’s sister filed a caveat despite retaining the items

of tangible personal property that had been delivered to her

under the will. Id. The sister argued that retention of the

tangible personal property should not work to estop her from

pursuing the caveat because, if the will were set aside, she

would be entitled to one-third of the estate, which was more
                                      -24-
than the value of the property she retained. Id. at 651, 561

S.E.2d   at   540.    Acknowledging       the   rule   set   forth    in   Will   of

Peacock and applied in Will of Smith, i.e., that “one cannot be

estopped by accepting that which he would be legally entitled to

receive in any event,” we distinguished the facts in Will of

Lamanski. Id. at 651, 561 S.E.2d at 540-41. Specifically, we

pointed out that the beneficiary in Will of Peacock received

cash in an amount less than he would have received if the will

were set aside. Id. In Will of Lamanski, however, the decedent’s

sister had been given a right to choose from among items of

tangible      personal    property        in    the    decedent’s      home.      Id.

Otherwise, the sister “would have had no legal right, outside

the will, to the specific personal property which she received

and retained pursuant to the specific bequest.” Id. Thus, the

distinguishing       factor   in   Will    of    Lamanski    was     the   sister’s

choice   of   specific    property    which      she   would   not    necessarily

receive if the will were set aside. Id.

    In this case, unlike Will of Lamanski, Caveator did not

receive a specific bequest. Rather, he asserted his right to an

elective share, consistent with the validity of the will. The

amount of the elective share awarded to Caveator was a cash

amount that was a direct result of the probate of Decedent’s
                                              -25-
will.   Modeling       our    analysis        after    Will     of   Peacock,     Will    of

Smith, and Will of Lamanski, we conclude that, if the will were

set aside, Caveator would be entitled to receive a cash amount

greater than he has already received. He has not exercised a

right   under    the    will       to   any    specific       property    he    would    not

otherwise   be    entitled         to   receive.        Thus,    Caveator       cannot   be

estopped from pursuing the caveat action based on his receipt of

the elective share because he would be entitled to that amount

of cash in any event. Propounder’s argument is overruled.

                                        Conclusion

    Propounder argues that the trial court’s order, granting

summary   judgment,          was   appropriate         pursuant      to   the   equitable

doctrines   of    election         of   remedies       and    judicial     estoppel.      We

conclude,   as     discussed            above,        that    neither      doctrine       is

applicable here. Therefore, we hold that the trial court erred

in granting summary judgment in favor of Propounder. We thus

reverse that decision.

    REVERSED.

    Judges BRYANT and DILLON concur.
