              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-613

                              Filed: 20 December 2016

Alamance County, No. 07-E-406

IN THE MATTER OF THE ESTATE OF JAMES JUNIOR PHILLIPS, DECEASED,

MARY PHILLIPS, CAVEATOR
DIANE BOSWELL, PROPOUNDER


      Appeal by caveator from order entered 2 February 2016 by Judge Eric C.

Morgan in Alamance County Superior Court. Heard in the Court of Appeals 17

November 2016.


      Ronald Barbee for caveator-appellant.

      Holt, Longest, Wall, Blaetz & Moseley, PLLC, by W. Phillip Moselely, for
      propounder-appellee.


      TYSON, Judge.


      Mary Phillips (“caveator”) appeals from an order granting summary judgment

in favor of Diane Boswell (“propounder”). We reverse and remand for trial.

                               I. Factual Background

      James Junior Phillips (“decedent”) was born 20 September 1925 and died 2

May 2007. The decedent was the father of two children from two separate marriages,

including the caveator. The decedent also fathered other children out of wedlock,

including the propounder. His death certificate lists the cause of his death as general
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                                  Opinion of the Court



malnutrition and dementia.      The death certificate lists the propounder as the

informant.

      Shortly after decedent’s death, the propounder submitted a paper writing as

the purported last will of the decedent signed on 3 April 2007 (“2007 Will”). The

2007 Will was signed less than a month prior to decedent’s death and left all of his

property to the propounder. The 2007 Will was admitted to probate and Letters

Testamentary were issued to the propounder.

      On 3 February 2010, the caveator filed a caveat to the 2007 Will. First, the

caveator asserted at the time the decedent allegedly signed the 2007 Will, he suffered

from dementia and lacked sufficient mental capacity to execute the will or any other

legal document. Second, she asserted the 2007 Will was procured by undue influence

and duress over the decedent by the propounder and possibly others. Finally, she

asserted, upon information and belief, that the 2007 Will was not properly executed

as required by law for a valid attested will.

      On 29 October 2012, the propounder filed a response to the caveat to the

probate of the will. The response alleged an ongoing conflict between the caveator

and the decedent. The decedent was alleged to have had little contact with the

caveator for more than fifteen years prior to his death. The propounder referenced

and attached another will, which the decedent had purportedly executed in 1993

(“1993 Will”). The 1993 Will left the majority of the decedent’s property to the



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propounder and his nephew. The decedent also left a remaining vehicle to his

girlfriend at the time, as well as a life estate in a house, with the remainder to the

propounder and the decedent’s nephew. The 1993 Will specifically made no bequest

or devise to the caveator.

       The propounder’s response to the caveat also notes the decedent and attorney

who executed the 2007 Will agreed to tear the 1993 Will in order to revoke it,

pursuant to the execution of the 2007 Will. The caveator asserted neither the

caveator nor her attorney had received a copy of the response, along with the

certificate of service and exhibits. The trial court denied the caveator’s motion to

strike the response from being included in the record on appeal.

       On 6 January 2016, the propounder filed a motion for summary judgment with

six affidavits and two depositions in support of her motion. Two of the affidavits

were from the two attorneys who had prepared the 1993 Will and 2007 Will. Each

attorney separately stated the decedent was competent to execute each respective

will. The affidavit regarding the 2007 Will asserts it was executed outside of the

attorney’s office.

       Two of the propounder’s other affidavits were submitted by a married couple,

Herman and Shirley Long, who were long-time friends of the decedent.            Their

affidavits asserted Mrs. Long had suggested to the decedent that he prepare a will

due to his declining health. Their affidavits asserted decedent responded that he



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already had a will, but was thinking of changing it to give the propounder all of his

property. Mrs. Long’s affidavit also stated she knew the caveator and noted the

caveator had an estranged relationship with the decedent.

      The propounder’s final two affidavits were submitted by one of decedent’s ex-

wives and from a former girlfriend. Both women’s affidavits stated they knew the

propounder and caveator, and the propounder’s and caveator’s respective

relationships with their father. Both women noted the caveator had a contentious

relationship with the decedent, but that the decedent loved the propounder, and she

had looked after him during his illness. After visiting the decedent during the last

year of his life, both women believed him to be in good mental health and aware of

his property holdings. Overall, all six of the propounder’s affidavits asserted the

decedent was competent to make a will, had a good relationship with the propounder,

and had a strained relationship with the caveator.

      On 21 January 2016, the caveator responded with four affidavits made in

opposition to the propounder’s motion.       These affidavits were sworn by blood

relatives of the decedent, including his brother, two nieces, and grandniece. None of

these affiants were interested parties in the estate.

      These affidavits directly contradict the claims asserted in the propounder’s

affidavits, asserting decedent was in good mental health and that he wanted the

propounder to inherit all his property. Three of the affiants stated they had visited



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the decedent almost daily from March 2007 until his death; the fourth affiant visited

him frequently during that time frame. The affiants all assert decedent told them

he did not trust the propounder, thought she was trying to poison him, and that she

had stolen money from him. Three of the affiants assert that on one occasion the

propounder refused to let the caveator see her father and had pushed her out of the

house. These affiants also assert they had never seen Herman or Shirley Long at

decedent’s house.

      The affiants allege the decedent stated, both before and after his admission to

the hospital, that the propounder “was trying to get him to sign some papers that

would give her all of his property” and he did not want to leave her any of his

property. Specifically upon his return from the hospital, decedent told them he had

refused to sign any papers and did not want the propounder to have any of his

property. The affiants also assert they knew decedent’s signature, and the signature

on the 2007 Will was not that of the decedent.

       The propounder moved to strike these affidavits on the grounds they (1) were

not based upon personal knowledge, (2) contained hearsay, (3) were barred by Rule

601 of the North Carolina Rules of Civil Procedure, and (4) the statements regarding

the decedent’s signature raised issues not pled by the caveator. The trial court heard

arguments on the propounder’s motion to strike the affidavits and motion for

summary judgment on 25 January 2016.



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      The trial court granted the propounder’s motion to strike the caveator’s

affidavits and held the tendered affidavits were not timely served pursuant to Rule

56(c) of the North Carolina Rules of Civil Procedure, they violated Rule 802 of the

North Carolina Rules of Evidence, and the holding of In re Will of Ball, 225 N.C. 91,

33 S.E.2d 619 (1945). The trial court also granted the propounder’s motion for

summary judgment and concluded the caveator did not have standing to bring the

action. The trial court further stated that even if the caveator did have standing, no

genuine issue concerning any material fact existed and the propounder was entitled

to summary judgment as a matter of law. The caveator appeals.

                                       II. Jurisdiction

      Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1), which

provides for an appeal of right from any final judgment of a superior court. N.C. Gen.

Stat. § 7A-27(b)(1) (2015).

                                         III. Issues

      The caveator contends the trial court erred by (1) granting the propounder’s

motion to strike her submitted affidavits made in opposition to the propounder’s

motion for summary judgment, and (2) granting the propounder’s motion for

summary judgment.

                                  IV. Standard of Review




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      A caveat is an in rem proceeding and operates as “an attack upon the validity

of the instrument purporting to be a will.” In re Will of Cox, 254 N.C. 90, 91, 118

S.E.2d 17, 18 (1961) (citation omitted). This Court has noted:

             When a caveat is filed the superior court acquires
             jurisdiction of the whole matter in controversy, including
             both the question of probate and the issue of devisavit vel
             non. Devisavit vel non requires a finding of whether or
             not the decedent made a will and, if so, whether any of the
             scripts before the court is that will. Thus, in a case such
             as this one, where there are presented multiple scripts
             purporting to be the decedent’s last will and testament,
             the issue of devisavit vel non should be resolved in a single
             caveat proceeding in which the jury may be required to
             answer numerous sub-issues[.]

In re Will of Dunn, 129 N.C. App. 321, 325-26, 500 S.E.2d 99, 102 (1998) (emphasis

original) (citations and quotation marks omitted), disc. review denied, 348 N.C. 693,

511 S.E.3d 645 (1998).

      Summary judgment may be entered in a caveat proceeding in factually

appropriate cases. See, e.g., In re Will of Jones, 362 N.C. 569, 573-74, 669 S.E.2d 572,

576-77 (2008) (analyzing the case under traditional summary judgment standards

to determine whether genuine issues of material fact existed). While we review an

order striking an affidavit in support of or in opposition to summary judgment for

abuse of discretion, Blair Concrete Servs., Inc. v. Van-Allen Steel Co., 152 N.C. App.

215, 219, 566 S.E.2d 766, 768 (2002), we review the trial court’s ultimate




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determination of the summary judgment motion de novo. In re Will of Jones, 362

N.C. at 573, 669 S.E.2d at 576.

      Summary judgment is only appropriate where “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show 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.” N.C. Gen. Stat. § 1A-1, Rule 56(c)

(2015). When considering a motion for summary judgment, the trial court views the

evidence in a light most favorable to the nonmoving party and resolves all inferences

against the moving party. In re Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576.

“Nevertheless, if there is any question as to the weight of evidence summary

judgment should be denied.” Id. at 573-74, 669 S.E.2d at 576 (citation, brackets, and

quotation marks omitted).

      Because of the factual nature of issues presented during caveat proceedings,

“[s]ummary judgment should be entered cautiously.” Seagraves v. Seagraves, 206

N.C. App. 333, 338, 698 S.E.2d 155, 161 (2010); see In re Will of Jones, 362 N.C. at

582-83, 669 S.E.2d at 582 (reversing summary judgment on undue influence); In re

Will of Priddy, 171 N.C. App. 395, 402, 614 S.E.2d 454, 460 (2005) (reversing

summary judgment on testamentary capacity, undue influence, and proper

execution of the will).

                                        V. Standing



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      The propounder asserts the caveator, although an heir-at-law, did not have

standing to bring the caveat to the 2007 Will. The propounder argues the caveator

would not take under the 1993 Will, which the propounder submitted to the trial

court for consideration in her response to the caveat. We disagree.

      “Standing to sue means simply that the party has a sufficient stake in an

otherwise justiciable controversy to obtain judicial resolution of that controversy.”

Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 140, 544 S.E.2d 821, 824

(2001) (citations and quotation marks omitted). The parties in a caveat proceeding

“are not parties in the usual sense but are limited classes of persons specified by the

statute who are given a right to participate in the determination of probate of

testamentary script.” In re Ashley, 23 N.C. App. 176, 181, 208 S.E.2d 398, 401, cert.

denied, 286 N.C. 335, 210 S.E.2d 56 (1974).

       N.C. Gen. Stat. § 31-32 allows any person “interested in the estate” to file

such an action, which includes anyone “who has a direct pecuniary interest in the

estate of the alleged testator which will be defeated or impaired if the instrument in

question is held to be a valid will.” In re Ashley, 23 N.C. App. at 180, 208 S.E.2d at

401 (citation and quotation marks omitted).

      North Carolina courts have determined that heirs-at-law, next of kin, and

persons claiming under a prior will are all considered as a person “interested in the

estate” under the statute. See e.g., Sigmund Sternberger Foundation, Inc. v.



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Tannenbaum, 273 N.C. 658, 674, 161 S.E.2d 116, 127 (1968) (persons claiming under

a prior will); Brissie v. Craig, 232 N.C. 701, 705, 62 S.E.2d 330, 333 (1950) (heirs-at-

law); Randolph v. Hughes, 89 N.C. 428, 431 (1883) (next of kin).

      In In re Will of Barnes, 157 N.C. App. 144, 162, 579 S.E.2d 585, 597 (2003),

rev’d per curiam for reasons stated in the dissent, 358 N.C. 143, 592 S.E.2d 688-89

(2004), beneficiaries under a prior will, who were not heirs-at-law, filed a caveat to

the probated will. While the jury found the probated will had been procured by

undue influence, it also found that the prior will had been revoked by the testator.

Id. at 146, 579 S.E.2d at 587.

       The majority’s opinion held that, in managing the litigation of the caveat to

the probated will, the trial judge should have first ordered the jury to determine

whether the prior will had been revoked, prior to deciding the validity of the probated

will. Id. at 158-59, 579 S.E.2d at 594-95. The majority reasoned that in order to

determine whether the beneficiaries of the prior will had standing to caveat the

probated will, it was first necessary to determine whether the prior will had been

revoked. Id. If the prior will had been revoked, then the caveators did not have

standing and the trial court lacked jurisdiction over the matter. Id.

      The dissenting judge, and subsequently the Supreme Court, disagreed. Id. at

163, 579 S.E.2d at 597 (Hudson, J., concurring in part and dissenting in part). The

dissenting judge argued the caveators, as beneficiaries under a previous will, had



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standing to bring the caveat against the probated will, and such caveat properly

invoked the jurisdiction of the court. Id. Most significantly, the dissenting judge

stated:

             because the will caveat is a proceeding in rem, I do not
             believe that the jury’s ultimate determination that the
             [previous] will had been revoked should be held to erase
             the subject matter jurisdiction of the superior court over
             the entire proceeding ab initio. . . .

             . . . Whenever persons claiming under a prior will institute
             a caveat, they are potential, not certain, beneficiaries of
             the estate in question. Even if their claimed interest in
             the estate ultimately is not upheld, they nonetheless have
             standing to litigate the issues.

Id.

      The dissent’s analysis, adopted by our Supreme Court, in In re Will of Barnes

is applicable here.   While the propounder argues the caveator lacks standing,

because the caveator does not take under the 1993 Will, our courts’ precedents

indicate otherwise.    In this case, the caveator is a potential, but not certain,

beneficiary of the estate in question as the decedent’s heir-at-law. See id.; Brissie v.

Craig, 232 N.C. at 705, 62 S.E.2d at 333. As such, she had standing to bring the

initial caveat against the 2007 Will. Upon bringing the caveat, the court obtained

jurisdiction over the whole controversy, which eventually included the 1993 Will

submitted by the propounder. See id.




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      One of the purposes of a caveat proceeding is for the jury to determine if “any

of the scripts” before the court are, in fact, the decedent’s will. In re Will of Dunn,

129 N.C. App. at 325, 500 S.E.2d at 102 (emphasis and citation omitted). Whether

the caveator’s claimed interest is ultimately upheld, as an heir-at-law she had

standing to challenge the 2007 Will. See In re Will of Barnes, 157 N.C. App. at 163,

579 S.E.2d at 597. (Hudson, J., concurring in part and dissenting in part). The

propounder’s subsequent submission of the 1993 Will does not change her status as

such nor dissolve the court’s jurisdiction. Even if the 2007 Will is held to be invalid

and the 1993 Will upheld, because the caveator is an heir-at-law, this determination

would not deprive the trial court of jurisdiction ab initio. See id. The trial court erred

in ruling the caveator lacked standing to bring the caveat to the 2007 Will. That

portion of the trial court’s order is reversed.

                                     VI. Motion to Strike

      The caveator argues the trial court erred in granting the propounder’s motion

to strike her submitted affidavits made in opposition to the propounder’s motion for

summary judgment. The trial court granted the motion to strike the affidavits

pursuant to: (1) Rule 56 of the North Carolina Rules of Civil Procedure; and, (2) Rule

802 of the North Carolina Rules of Evidence, along with In re Will of Ball, 225 N.C.

91, 33 S.E.2d 619. We address both of these grounds.

                                  1. Timing of the Affidavits



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      The trial court first determined the affidavits were not timely served in

accordance with Rule 56(c) of the North Carolina Rules of Civil Procedure. We

disagree.

      In response to a motion for summary judgment, the adverse party may submit

opposing affidavits at least two days prior to the hearing. N.C. Gen. Stat. § 1A-1,

Rule 56(c) (2015). Here, the caveator’s response to the propounder’s motion for

summary judgment and attached affidavits were served 21 January 2016. The

summary judgment hearing was held on 25 January 2016, four days later. The

affidavits were clearly served by hand delivery before the two day limit proscribed

by Rule 56(c).   The trial court abused its discretion by striking caveator’s four

affidavits on that ground. See id.

                            2. Substance of the Affidavits

      The trial court found the caveator’s four tendered affidavits “do not set forth

such facts as would be admissible and contain hearsay and do not address the issues

of Undue Influence, Duress or proper execution of the will.” Based upon this finding

of fact, the trial court concluded the propounder’s objection to and motion to strike

the caveator’s affidavits in opposition to summary judgment should be allowed

pursuant to Rule 802 of the North Carolina Rules of Evidence and the holding of In

re Will of Ball. We disagree.




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      Affidavits submitted in opposition to a motion for summary judgment must

be: (1) made on personal knowledge; (2) set forth such facts as would be admissible

in evidence; and, (3) affirmatively show the affiant is competent to testify to the

matters stated therein. N.C. Gen. Stat. §1A-1, Rule 56(e) (2015). The key issue in

this case is whether the statements in any or all of the caveator’s four affidavits

“would be admissible in evidence.” Id.

      Our courts have long and consistently allowed a testator’s declarations to be

admitted into evidence for certain purposes during a caveat proceeding. See In re

Will of Brown, 194 N.C. 583, 595-96, 140 S.E. 192, 199 (1927); In re Will of Ball, 225

N.C. at 94-95, 33 S.E.2d at 621-22. For example, the Supreme Court of North

Carolina has stated:

             [i]t has been generally held that declarations, oral or
             written, by the deceased may be shown in evidence upon
             the trial of an issue involving his mental capacity, whether
             such declarations were made before, at or after the date
             on which it is contended that the deceased was of unsound
             mind.

In re Will of Brown, 194 N.C. at 595, 140 S.E. at 199 (citation omitted).

      Our Supreme Court has also allowed a testator’s declarations to be admitted

for the purpose of showing undue influence:

             Evidence of declarations of the testator which disclose his
             state of mind at the time of the execution of the paper
             writing or the circumstances under which it was executed,
             tending to show he did or did not act freely and
             voluntarily, is competent as substantive proof of undue


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             influence. Other declarations, when relevant, may be
             admitted as corroborative or supporting evidence, but
             alone they are not sufficient to establish the fact at issue.

In re Will of Ball, 225 N.C. at 94-95, 33 S.E.2d at 622 (internal citation omitted)

(emphasis supplied).

      Here, each of the affidavits in opposition to the propounder’s motion for

summary judgment include statements, which were allegedly made by the decedent

to the affiants between March and April 2007. The affiants assert the decedent told

them he did not trust the propounder, thought she was trying to poison him, and

that the propounder had stolen money from him.

      The affiants also assert decedent told them, both before and after his

admission to the hospital, that the propounder was trying to get him to sign some

papers that would give her all of his property and decedent did not want to leave the

propounder any of his property.

      The propounder asserts these statements were almost entirely confined to

those made after the execution of the will, and as such the holding in In re Will of

Ball prohibits them from being admitted into evidence. We disagree.

      First, based upon the record, it appears these statements were made

sometime between March 2007 and April 2007.              The decedent’s 2007 Will was

allegedly signed on 3 April 2007, which means some of these statements were

necessarily made prior to the purported execution of the 2007 Will. Second, even if



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some of the statements were made after the execution of the will, nothing in In re

Will of Ball requires their exclusion. See In re Will of Ball, 225 N.C. at 94-95, 33

S.E.2d at 622.

      The Court in In re Will of Ball specifically allows other declarations, including

those not made at the time of the execution of the will, or which demonstrate the

circumstances under which it was executed, to be admitted into evidence, when

relevant. Id.; see James B. McLaughlin, Jr. and Richard T. Bowser, Wiggins Wills

and Administration of Estates in North Carolina § 6:3(b) (4th ed. 2005) (“North

Carolina appears to . . . admit the testator’s post-testamentary declarations as

substantive proof of undue influence.” (citing Caudill v. Smith, 117 N.C. App. 64,

450 S.E.2d 8 (1994); In re Will of Hall, 252 N.C. 70, 113 S.E.2d 1 (1960); In re Will of

Ball, 225 N.C. 91, 33 S.E.2d 619).

      While these statements may not establish all the facts at issue, that question

was not before the court on the motion to strike the affidavits. Rather, the question

was whether these statements were admissible into evidence. See N.C. Gen. Stat. §

1A-1, Rule 56(e). The decedent’s declarations included in the affidavits are relevant

to support the caveator’s argument that the propounder exerted undue influence

over the decedent, and, as such, are admissible into evidence, which defeats their

exclusion.




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      Other information contained in the excluded affidavits outline the decedent’s

deteriorating health and memory based upon the times the affiants spent with him

in the two months prior to his death. They also assert the propounder did not allow

the caveator to see her father on one occasion.           These affidavits meet the

requirements of N.C. Gen. Stat. §1A-1, Rule 56(e) and do not violate Rule 802 or the

case law outlined in In re Will of Ball. The trial court also erred by striking the

affidavits on those grounds.

      We note that North Carolina’s Dead Man’s Statute, N.C. Gen. Stat. § 8C-1,

Rule 601(c), is not at issue here; as none of the affiants are interested witnesses. See

Taylor v. Abernethy, 174 N.C. App. 93, 96, 620 S.E.2d 242, 246 (2005) (noting that to

be disqualified as a interested witness under the statute, the witness must have “a

direct legal or pecuniary interest in the outcome of the litigation . . . a pecuniary

interest alone is insufficient to disqualify a witness under Rule 601.” (internal

quotation marks and citations omitted)), cert. denied, 360 N.C. 367, 630 S.E.2d 454

(2006).

                                  VII. Summary Judgment

      After granting the motion to strike the caveator’s affidavits in opposition to

summary judgment, the trial court found there was no standing for the caveator to

bring the case and no genuine issue of material fact existed. The court granted the

propounder summary judgment as a matter of law. We disagree.



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      In her caveat, the caveator asserted the decedent lacked capacity to execute

the will, the will was procured by undue influence and duress, and that “upon

information and belief” the will was not executed according to the legal requirements

for a valid attested will. We address each contention.

                             1. Testamentary Capacity

      The presumption is 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).          “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

Buck, 130 N.C. App. 408, 412, 503 S.E.2d 126, 130 (1998), aff’d, 350 N.C. 621, 516

S.E.2d 858 (1999) (citing In re Will of Shute, 251 N.C. 697, 111 S.E.2d 851 (1960)).

      To establish lack of testamentary capacity, s caveator need only show that any

one of the essential elements of testamentary capacity is lacking. In re Will of Kemp,

234 N.C. 495, 499 (1951). A caveator cannot “establish lack of testamentary capacity

where there [is] no 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 Estate of Whitaker, 144 N.C. App. 295, 298, 547



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S.E.2d 853, 856 (quoting In re Will of Buck, 130 N.C. App. at 413, 503 S.E.2d at 130),

disc. review denied, 354 N.C. 218, 555 S.E.2d 278 (2001). It is not sufficient for a

caveator to present “only general testimony concerning testator’s deteriorating

physical health and mental confusion in the months preceding the execution of the

will, upon which [a caveator’s] witnesses based their opinions as to [the testator’s]

mental capacity.” In re Will of Buck, 130 N.C. App. at 412, 503 S.E.2d at 130.

      Here, the caveator’s affidavits allege the decedent was suffering from cancer

and dementia, and was taking strong pain medications in the months preceding his

death and when he purportedly executed the 2007 Will less than one month prior to

his death. Although the propounder asserted in her response to the caveat that the

decedent did not have dementia, the decedent’s death certificate, submitted as an

attachment to the caveat, lists “dementia” as a cause of death. The propounder is

listed as the informant on the death certificate. As noted, decedent executed the

purported 2007 Will on 3 April 2007 and died 2 May 2007. Viewed in the light most

favorable to the caveator, as the nonmoving, genuine issue of material fact exists

concerning decedent’s testamentary capacity.

                          2. Undue Influence and Duress

      In the context of a will caveat,

             [u]ndue influence is a fraudulent influence over the mind
             and will of another to the extent that the professed action
             is not freely done but is in truth the act of the one who
             procures the result.


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In re Estate of Loftin, 285 N.C. 717, 722, 208 S.E.2d 670, 674-75 (1974).

      Our courts consider a number of factors to determine whether undue influence

was exerted on the testator:

             1. Old age and physical and mental weakness;

             2. That the person signing the paper is in the home of the
             beneficiary and subject to his constant association and
             supervision;

             3. That others have little or no opportunity to see him;

             4. That the will is different from and revokes a prior will;

             5. That it is made in favor of one with whom there are no
             ties of blood;

             6. That it disinherits the natural objects of his bounty;

             7. That the beneficiary has procured its execution.

In re Will of McNeil, 230 N.C. App 241, 245-46, 749 S.E.2d 499, 503 (2013) (citation

omitted).

      Caveators are not required to demonstrate the existence of every factor to

prove undue influence, because “undue influence is generally proved by a number of

facts, each one of which standing alone may be of little weight, but taken collectively

may satisfy a rational mind of its existence.” Id. (citation and quotation marks

omitted). This Court has further clarified, “[w]hether these or other factors exist

and whether executor unduly influenced decedent in the execution of the Will are



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                                  Opinion of the Court



material questions of fact.” In re Will of Smith, 158 N.C. App. 722, 727, 582 S.E.2d

356, 360, review denied, 357 N.C. 506, 588 S.E.2d 474 (2003).

      While not synonymous, undue influence and duress are “related wrongs, and

to some degrees overlap.” Link v. Link, 278 N.C. 181, 191, 179 S.E.2d 697, 703 (1971).

“Duress is the result of coercion and may be described as the extreme of undue

influence and may exist even when the victim is aware of all facts material to his

decision.” In re Estate of Loftin, 285 N.C. at 722-23, 208 S.E.2d at 675. A caveator’s

allegations underlying her claims of undue influence and duress may be the same.

See In re Will of McNeil, 230 N.C. App at 249 n.5, 749 S.E.2d at 505.

      The caveator’s affidavits, as submitted, create a genuine issue of material fact

of whether the purported 2007 Will was procured by undue influence or duress. The

affidavits assert the decedent’s physical and mental weakness around the time of

the 2007 Will’s purported execution; the propounder’s status as decedent’s primary

caregiver, and her refusal to allow the caveator to see the decedent on one occasion

prior to his death; and the decedent’s stated fear of the propounder and how he did

not trust her.

      Viewed in the light most favorable to the nonmoving party, the affidavits also

emphasize the propounder’s continued insistence that the decedent sign papers to

give her all of his property. The affidavits assert that the decedent did not want to

leave the propounder any of his property, and actually refused to do so. Whether the



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                                  Opinion of the Court



factors pertaining to undue influence exist and whether the propounder “unduly

influenced decedent in the execution of the [w]ill are material questions of fact.” See

In re Will of Smith, 158 N.C. App. at 727, 582 S.E.2d at 360. When viewed in the

light most favorable to the caveator, genuine issue of material fact exists to preclude

summary judgment on the issues of undue influence and duress.

                           3. Proper Execution of the Will

      For an attested written will to be valid, it must comply with the statutory

requirements as set forth in N.C. Gen. Stat. § 31-3. In re Will of Priddy, 171 N.C.

App. at 400, 614 S.E.2d at 458. “In a caveat proceeding, the burden of proof is upon

the propounder to prove that the instrument in question was executed with the

proper formalities required by law.” In re Will of Coley, 53 N.C. App. 318, 320, 280

S.E.2d 770, 772 (1981). N.C. Gen. Stat. § 31-3, as effective in the present case,

required:

             (a) An attested written will is a written will signed by the
             testator and attested by at least two competent witnesses
             as provided by this section.

             (b) The testator must, with intent to sign the will, do so by
             signing the will himself or by having someone else in the
             testator’s presence and at his direction sign the testator’s
             name thereon.

             (c) The testator must signify to the attesting witnesses
             that the instrument is his instrument by signing it in their
             presence or by acknowledging to them his signature
             previously affixed thereto, either of which may be done
             before the attesting witnesses separately.


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                                   Opinion of the Court




             (d) The attesting witnesses must sign the will in the
             presence of the testator but need not sign in the presence
             of each other.

N.C. Gen. Stat. § 31-3 (2011) (subsequently amended by N.C. Gen. Stat. § 31-3.3,

effective 1 January 2012).

      This Court has allowed caveators to challenge whether a will was properly

executed, even where self-proving affidavits accompanied the notarized and signed

will. In re Will of Priddy, 171 N.C. App. at 400-01, 614 S.E.2d at 458-59 (holding

material issue of fact existed as to whether the testator complied with the will

formalities where caveator presented evidence the testator did not sign in the

presence of an attesting witness or acknowledge his signature to that witness, and

the attesting witness did not sign in the presence of the testator).

      Here, along with the allegations of lack of testamentary capacity, undue

influence, and duress, three of the caveator’s affidavits by blood relatives, stated the

affiant was familiar with the decedent’s signature, and that the signature on the

2007 Will was not the decedent’s. Viewed in the light most favorable to the caveator,

as the nonmoving party, genuine issue of material fact exists regarding whether the

2007 Will complied with the statutorily required formalities of execution. Id.

                                   VIII. Conclusion

      The trial court erred in ruling the caveator lacked standing to bring the caveat

to the 2007 Will and by striking the caveator’s four affidavits.


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                                  Opinion of the Court



      Because of the factual nature of issues presented during caveat proceedings,

“[s]ummary judgment should be entered cautiously.” Seagraves, 206 N.C. App. at

338, 698 S.E.2d at 161. After our review and consideration of all the affidavits and

other evidence presented in the record, and based upon our de novo review, genuine

issues of material fact exist to render summary judgment improper. The trial court’s

order is reversed and this cause is remanded for trial. It is so ordered.

      REVERSED AND REMANDED.

      Judges McCULLOUGH and DILLON concur.




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