An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-909


Filed: 18 May 2004

                                        Lincoln County< br> ESTATE OF                                    No. 00 E 390

    Appeal by caveator from orders entered 2 April 2003 by Judge Timothy S. Kincaid in Lincoln County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Stephen B. Dolley, Jr. for caveator-appellant.

    Pendleton & Pendleton, P.A., by Wesley L. Deaton, for propounder-appellee.

    HUNTER, Judge.

    Caveator, Reba S. Propst, appeals from orders (1) denying her motion to continue a hearing on a motion for summary judgment filed by propounder, Allan N. Propst, until discovery proceedings were completed, and (2) granting propounder's summary judgment motion. For the reasons stated herein, we affirm.
    Nelson Alexander Propst (“Propst”) fathered three children: caveator, propounder, and Donna P. Keener. On 26 May 2000, Propst executed his last will and testament, leaving his entire estate to propounder. Propst died on 15 October 2000.
    On 17 July 2001, caveator filed a caveat to Propst's will alleging that the execution of the will was obtained by propounder through undue influence and at a time when Propst was afflicted by mental incapacity. Propounder answered denying the allegations andsubsequently filed a motion to dismiss caveator's caveat on 1 February 2002. By order entered 17 October 2002, the trial court “ordered that the Motion to Dismiss . . . is hereby denied and the parties are granted six (6) months from [13 October 2002] to complete discovery, following which this case shall be docketed for trial as expeditiously as possible.”
    Both parties were deposed on 15 November 2002. When asked the basis for stating that Propst was mentally unable to execute a will, Caveator testified that, after her father's stroke,
        [h]e was on too many medications, and he wouldn't have understood anything, any of the writings or anything like that. With my dad when they came in to do his baths and stuff like that, if you told him he needed to sign a paper, he would sign it. I was there during that time.

Additionally, when asked the basis for stating that propounder had obtained the will through undue influence, caveator testified:
        Number 1, Daddy would have never signed anything like that. Number 2, Daddy was on too many medications to be in a lawyer's office. He had had a stroke. He had been affected. He couldn't use his body functions. And it affects your mind when you have a stroke. It affects everything in your whole body. And I have a paper on strokes. It says that it does affect you. And there is no way that he would have done something like that on his own.

    Propounder filed a motion for summary judgment on 9 January 2003. To support his motion, propounder filed the affidavits of Propst's doctor, the drafting attorney, and twenty other individuals who all testified that Propst was mentally competent and alert at the time the will was executed. Further, five of theaffiants testified that Propst told them before his death that he intended to leave his entire estate to propounder in appreciation for propounder taking care of him. On 22 January 2003, propounder filed an amended notice of hearing stating that his motion for summary judgment would be heard on 10 March 2003.
    Caveator filed a motion for continuance of the hearing on the summary judgment motion on 13 February 2003 stating that her discovery was not complete and that the 17 October order allowed for discovery to continue until 13 April 2003, six months from 13 October 2002. Caveator then filed notice on 21 February 2003 of her intent to take five depositions on 6 March 2003 and four depositions on 7 March 2003. Finally, caveator filed a “Response to Motion for Summary Judgment and Affidavit” on 7 March 2003 regarding Propst's incompetency.
    On 10 March 2003, each party's motion was heard. At the conclusion of arguments, caveator's motion for a continuance was denied and propounder's motion for summary judgment was granted. Separate orders regarding each were filed on 2 April 2003, which caveator appeals.


    Caveator argues the trial court erred by denying her motion for a continuance of the hearing on propounder's motion for summary judgment to allow her a full six months to complete discovery as provided in the 17 October order. We disagree.
    “A trial court is not barred in every case from granting summary judgment before discovery is completed. Further, thedecision to grant or deny a continuance is solely within the discretion of the trial judge and will be reversed only when there is a manifest abuse of discretion.” N.C. Council of Churches v. State of North Carolina, 120 N.C. App. 84, 92, 461 S.E.2d 354, 360 (1995) (citations omitted), per curiam aff'd, 343 N.C. 117, 468 S.E.2d 58 (1996). Here, caveator has failed to show how the trial court abused its discretion in denying her motion for a continuance. The 17 October order gave the parties from 13 October 2002 until 13 April 2003 to complete discovery. Following that order, both parties were deposed on 15 November 2002. Caveator gave no notice of her intention to seek additional discovery (i.e. take additional depositions) until after defendant had filed a motion for summary judgment on 9 January 2003 and notice of the hearing on that motion on 22 January 2003. Caveator then filed nine deposition notices that were scheduled for three and four days before the hearing.
    Plaintiff further asserts that she did not have time to “type[] up” those depositions prior to the hearing on 10 March 2003. However, if those depositions could have assisted caveator withstand the propounder's motion for summary judgment, she should have presented an affidavit to the trial court pursuant to Rule 56 of our statutes detailing facts justifying her opposition to the motion. N.C. Gen. Stat. § 1A-1, Rule 56(f) (2003) (providing “[s]hould it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, thecourt may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just”). See also Glynn v. Stoneville Furniture Co., Inc., 85 N.C. App. 166, 354 S.E.2d 552 (1987). Accordingly, caveator's argument is overruled.

    Caveator also argues the trial court erred by granting summary judgment in favor of propounder. On an appeal from a grant of summary judgment, this Court reviews the trial court's decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). Thus, when viewing the evidence in the light most favorable to the non-movant, we must determine whether the trial court properly concluded that the moving party showed, through pleadings and affidavits, that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Caveator contends summary judgment was improperly granted on the issues of (A) undue influence, and (B) testamentary capacity.

    In the context of a will caveat, this Court provides as follows:
        “[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 willof 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.'” Because direct evidence of undue influence is rarely available, our courts look to the “surrounding facts and circumstances, which standing alone would have little importance, but when taken together would permit the inference that, at the time the testat[rix] executed [her] last will and testament, [her] own wishes and free will had been overcome by another.”

            “'There are four general elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert influence; (3) a disposition to exert influence; and (4) a result indicating undue influence.'” Factors relevant to the issue of undue influence 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 [her] bounty.

        7.    That the beneficiary has procured its execution.”

In re Will of Sechrest, 140 N.C. App. 464, 468-69, 537 S.E.2d 511, 515 (2000) (citations omitted), disc. review denied, 353 N.C. 375, 547 S.E.2d 16 (2001). However, regardless of which factors are found, the caveator must carry her burden of “presenting specific evidence that [testator's] will was the result of an 'overpowering'and 'fraudulent influence' exerted by [propounder] which overcame [testator's] free will[]” in order to establish a genuine issue of material fact. In re Estate of Whitaker, 144 N.C. App. 295, 302, 547 S.E.2d 853, 858, disc. review denied, 354 N.C. 218, 555 S.E.2d 278 (2001).
    It is undisputed that some of the evidence in the instant case established certain relevant factors that would support undue influence, such as Propst's advanced age, his physical weakness due to a stroke, and the fact that Propst's will did not provide for all of his children. Yet, there was no specific evidence establishing “overpowering” and “fraudulent influence” exerted by propounder over his father. In fact, when asked during her deposition whether propounder had fraudulently influenced Propst and whether she had evidence of such influence, caveator testified: “I can't speak for what [propounder] done. . . . I don't have any signed papers saying that he did that. I don't know what happened, but I do know that Daddy would not do something like that, not knowing what he was doing.” Propounder, on the other hand, presented five affidavits that established Propst devised his property of his own free will. Specifically, the affiants, individuals who knew and were acquainted with Propst, stated under oath that Propst personally told them “before his death, that he intended to leave all of his estate to [propounder], because . . . Propst believed that [propounder] had taken care of him well in his final days.” These affidavits provided significantly more than the conclusory statements of opinion offered by caveator that were notevidence to be considered on a motion for summary judgment. Whitaker, 144 N.C. App. at 302, 547 S.E.2d at 858. Therefore, the trial court did not err in granting summary judgment on this issue.

    With respect to Propst's capacity to execute the will, 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.” Sechrest, 140 N.C. App. at 473, 537 S.E.2d at 517. “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 Will of Smith, 158 N.C. App. 722, 725, 582 S.E.2d 356, 359 (2003) (citations omitted) (holding, in part, that summary judgment was properly granted on the issue of testamentary capacity because the caveator's affidavits did not show a lack of testamentary capacity at the time the will was executed).
    In the present case, caveator presented her affidavit and that of her daughter concerning Propst's testamentary capacity. In her deposition, caveator also testified that her only proof that Propost was mentally incapable was that “[h]e had had a stroke. He was on medication. . . . My daddy was a good man. My daddy believed in fairness.” However, while showing Propst's weakened physical and mental condition in general due to the stroke and medication he was taking, neither the affidavits nor caveator'sdeposition testimony provided objective evidence that Propst was incapacitated at the time the will was executed. “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.'” Id. at 725, 582 S.E.2d at 359 (citation omitted). On the contrary, propounder offered specific evidence regarding Propst's mental capacity at the time the will was executed. This evidence was presented in the form of affidavits from (1) the attorney who drafted the will who stated that, after questioning Propst to ascertain whether he was mentally capable of executing a testamentary document, the attorney “felt confident” that Propst had testamentary capacity; (2) the doctor who treated Propst during the time the will was executed, which doctor stated that Propst “had sufficient mental capacity to understand and execute a will;” and (3) twenty other individuals acquainted with Propst, which individuals stated that “[a]t no time did [they] witness anything about Mr. Propst that would indicate he was mentally incompetent or not in his right mind.” Thus, caveator's evidence was insufficient to meet her burden of proving that Propst lacked testamentary capacity to execute the will.
    Accordingly, the trial court did not err by (I) denying caveator's motion for a continuance, and (II) granting propounder's motion for summary judgment.
    Affirmed.    Chief Judge MARTIN and Judge THORNBURG concur.
    Report per Rule 30(e).

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