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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF THE WILL OF SHIRLEY G. SMITH, DECEASED
Filed: 1 July 2003
1. Wills_caveat_acceptance of benefits
The trial court erred by granting summary judgment against a caveator based on her
acceptance of a car under the challenged will. A caveator cannot be estopped by accepting that to
which she would be entitled in any event.
2. Wills_caveat_testamentary capacity_summary judgment_no evidence of lack of
The trial court properly granted summary judgment for the executor on the issue of
testamentary capacity. The caveator's affidavits show a general decline in decedent's health, that
she knew the nature of her bounty, and that she did not want to bequeath her estate to the
caveator. There was no direct evidence of defendant's lack of testamentary capacity at the time
the will was executed.
3. Wills_caveat_undue influence_summary judgment
The trial court erred by granting summary judgment for the executor on the issue of
undue influence. Whether factors showing undue influence existed presented questions of material
Appeal by caveator from order entered 3 June 2002 by Judge W.
Douglas Albright in Guilford County Superior Court. Heard in the
Court of Appeals 10 June 2003.
William G. Barbour for caveator-appellant.
Wyatt Early Harris Wheeler, LLP, by William E. Wheeler, for
Julie S. Michaux Pruitt (caveator) appeals from the grant of
summary judgment in favor of Carrie A. Allison (executor),
dismissing the caveat proceeding, and admitting the Last Will and
Testament of Shirley G. Smith (Will) to probate. We affirm in
part, reverse in part, and remand.
On 6 February 2001, Shirley G. Smith (decedent) executed the
Will which revoked all prior testamentary dispositions and
bequeathed her vehicle to caveator, her daughter. The Will named
executor, decedent's good friend, as the beneficiary of the
remainder of the property and appointed her as executrix of the
On 16 September 2001, decedent died at the age of sixty-one
and was survived by the caveator, two grandchildren, a great-
granddaughter and some siblings. In the five years prior to her
death, decedent had executed at least three different wills. Each
will substantially altered who would claim the majority of
On 20 September 2001, executor submitted the Will for probate,
qualified as executor, and was issued letters testamentary. On 12
October 2001, caveator filed a caveat proceeding alleging that
decedent lacked testamentary capacity and that the Will was
obtained by executor through undue and improper influence and
duress. Executor responded by alleging that caveator received and
accepted her bequest on 5 October 2001.
On 26 March 2002, executor moved for summary judgment. On 3
June 2002, the trial court found there was no issue of material
fact as to the validity of the Will, decedent's testamentary
capacity, and undue influence and granted summary judgment. It
further found that it appears without contradiction that Caveator
acknowledged the validity of the Will on October 5, 2001, prior to
filing this caveat proceeding on October 19, 2001, as a matter oflaw, by accepting a bequest to her under Item II, of the Will, to
wit: a 1999 Chevrolet mini-van. Caveator appeals.
Caveator contends the trial court erred in granting summary
judgment on the issues of (1) estoppel, (2) testamentary capacity,
and (3) undue influence.
III. Standard of Review
Summary judgment is appropriate if there is no genuine issue
of material fact and any party is entitled to judgment as a matter
of law. N.C. Gen. Stat. § 1A-1, Rule 56 (2001). The burden is on
the moving party to show the absence of any genuine issue of fact
and his entitlement to judgment as a matter of law. In re Will of
Lamanski, 149 N.C. App. 647, 649, 561 S.E.2d 537, 539 (2002). A
defendant may satisfy the burden by showing that the party
asserting the claim cannot overcome an affirmative defense which
would bar the action. Id.
 Caveator contends that the trial court erred in granting
the executor summary judgment on the grounds of estoppel. We
Although it is the general rule that one who accepts the
benefits under a will is estopped to contest the will's validity,
'[o]ne cannot be estopped by accepting that which he would be
legally entitled to receive in any event.' Lamanski, 149 N.C.
App. at 651, 561 S.E.2d at 540 (citing Mansour v. Rabil, 277 N.C.
364, 177 S.E.2d 849 (1970); quoting In re Will of Peacock, 18 N.C.
App. 554, 556, 197 S.E.2d 254, 255 (1973)). In Lamanski, the decedent's sister was bequeathed any
tangible personal property in my home. Id. at 647, 561 S.E.2d at
538. Pursuant to the will, she selected and received numerous
items of personal property. Id. at 648, 561 S.E.2d at 539. She
subsequently filed a caveat proceeding contesting the validity of
the will. Id. Decedent's sister would have been entitled to one
third of the net estate if the will was set aside. Id. at 651, 561
S.E.2d at 540. This Court held that since appellant-caveator
would have had no legal right, outside the will, to the specific
personal property which she received and retained pursuant to the
specific bequest in [the will] she was estopped from filing a
caveat proceeding. Id.
In Peacock, the decedent's son received and accepted cash
pursuant to the decedent's will which was less than the amount he
would have received if the will had been set aside. Peacock, 18
N.C. App. at 556, 197 S.E.2d at 255. This Court reversed summary
judgment based on estoppel and held that since the caveator would
have been entitled to receive the money in any event, he was not
estopped from asserting a subsequent caveat proceeding. Id.
The case at bar is more similar to Peacock than to Lamanski.
Under the challenged Will, caveator received and accepted the
decedent's vehicle. Under the prior will, caveator would receive
the same vehicle. As the only child of decedent, caveator would
receive the entire estate, including the vehicle. We hold that
[n]othing in the circumstances indicates any reason why it would
be inequitable for appellant to proceed with his caveat. Peacock,
18 N.C. App. at 556, 197 S.E.2d at 255. The trial court erred ingranting summary judgment based on estoppel.
V. Testamentary Capacity
 Caveator argues the trial court erred in granting summary
judgment on the issue of testamentary capacity. We disagree.
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)).
In our jurisprudence, a presumption exists that every
individual has the requisite capacity to make a will, and those
challenging the will bear the burden of proving, ..., that such
capacity was wanting. In re Will of Sechrest, 140 N.C. App. 464,
473, 537 S.E.2d 511, 517 (2000). 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 S.E.2d 853, 856 (2001) (quoting Buck, 130 N.C.
App. at 413, 503 S.E.2d at 130). 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] based
[her] opinion as to [the testator's] mental capacity. Buck, 130
N.C. App. at 412, 503 S.E.2d at 130. In Buck, we stated that the evidence presented, 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. Id.
The caveator's affidavits show only a general decline in
decedent's mental and physical health in the years prior to the
execution of the Will. This evidence also shows that decedent knew
the nature of her bounty and that she did not want to bequeath her
estate to the caveator because she didn't think [caveator] capable
of managing herself and money and property. There was no direct
evidence of decedent's lack of testamentary capacity at the time of
the execution of the Will.
Caveator at bar fails to set forth specific facts showing
that [decedent] was incapable of executing a valid will at the time
she did so, notwithstanding her alleged mental condition in the
years surrounding the will's execution. Whitaker, 144 N.C. App.
at 300, 547 S.E.2d at 857 (citing In re Will of Maynard, 64 N.C.
App. 211, 227, 307 S.E.2d 416, 428 (1983), disc. rev. denied, 310
N.C. 477, 312 S.E.2d 885 (1984) (the insane person during a lucid
interval can make a valid will.)). The trial court properly
granted summary judgment on the issue of testamentary capacity.
VI. Undue Influence
 Caveator contends the trial court erred in granting
summary judgment on the issue of undue influence because there aregenuine issues of material fact. We agree.
In the context of a will caveat, [u]ndue
influence is more than mere persuasion,
because a person may be influenced to do an
act which is nevertheless his voluntary
action. The influence necessary to nullify a
testamentary instrument is the '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.'
Sechrest, 140 N.C. App. at 468-69, 537 S.E.2d at 515 (citations
omitted). The four general elements of undue influence are: (1)
decedent is subject to influence, (2) beneficiary has an
opportunity to exert influence, (3) beneficiary has a disposition
to exert influence, and (4) the resulting will indicates undue
influence. Id. Relevant factors include:
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 [her].
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
7. That the beneficiary has procured its
Id. (citations omitted).
Whether these or other factors exist and whether executor
unduly influenced decedent in the execution of the Will are
material questions of fact. The trial court erred in grantingsummary judgment to executor on the issue of undue influence.
The trial court properly granted summary judgment on the issue
of testamentary capacity. The trial court erred in granting
summary judgment based on estoppel and on the issue of undue
Affirmed in part, reversed in part and remanded.
Chief Judge EAGLES and Judge STEELMAN concur.
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