Appeal by caveator from judgment entered 5 August 1996 and order entered 16 September 1996 by Judge Ronald L. Stephens in Durham County Superior Court. Heard in the Court of Appeals 9 October 1997.
The opinion of the court was delivered by: Martin, John C., Judge.
Robert Lee Dunn of Durham County died 26 June 1995 at the age of 89 years. He was survived by six children: Betty Mae Dunn Bullard, Vernon R. Dunn, William J. Dunn, Joseph J. Dunn, Billy R. Dunn, and Virginia Dunn Jones. On 7 July 1995, Joseph J. Dunn and Virginia Dunn Jones (hereinafter "propounders"), as named executors, presented paper writings dated 20 September 1994 and 26 October 1994 to the Clerk of Superior Court for probate as the Last Will and Testament of Robert Lee Dunn, and the First Codicil thereto. On 22 September 1995, Billy R. Dunn (hereinafter "caveator") filed a caveat alleging the will and codicil were not valid because Robert Lee Dunn lacked testamentary capacity at the time he executed the paper writings and because the paper writings were obtained through undue influence. Caveator also alleged that Robert Lee Dunn had executed a paper writing on 29 August 1994, which was his last will and testament. In their response, propounders denied the allegations of the caveat, averred that the documents submitted for probate were the valid will and codicil of Robert Lee Dunn, and denied the validity of the 29 August 1994 paper writing.
Briefly summarized, the evidence pertinent to the issues raised by this appeal tended to show that sometime prior to 15 August 1994, Betty Mae Dunn Bullard contacted attorney Dalton Loftin with respect to the preparation of a power of attorney for Robert Lee Dunn. Mr. Loftin prepared a power of attorney naming Billy R. Dunn and Betty Mae Dunn Bullard as Mr. Dunn's attorneys-in-fact; he did not meet with Mr. Dunn at that time and did not supervise the execution of the power of attorney. Sometime thereafter, Betty Mae Dunn Bullard again contacted Mr. Loftin with respect to the preparation of a will for Mr. Dunn. Because Robert Lee Dunn was elderly and confined to a wheelchair, Mr. Loftin went to his home in Durham on 15 August 1994 and conferred with him. Robert Lee Dunn instructed Mr. Loftin to prepare a will leaving his entire estate, in equal shares, to Betty Mae Dunn Bullard and caveator, Billy R. Dunn. He explained to Mr. Loftin that his other four children neither came to see him nor inquired about him and that he did not want to leave them anything. Mr. Loftin prepared a will pursuant to Mr. Dunn's instructions and Mr. Dunn executed the will on 29 August 1994. Mr. Loftin then mailed the will to the Estates Division of the Durham County Clerk's Office for safekeeping.
In September 1994, Joseph Dunn and Virginia Dunn Jones conferred with Mr. Dunn's physician. At this meeting, they learned that Mr. Dunn had executed the power of attorney in favor of Betty Mae Dunn Bullard and Billy R. Dunn and that Betty and Billy had requested Mr. Dunn's medical records and intended to change his physician. Virginia Dunn Jones met with attorney Richard F. Prentis, who prepared a power of attorney and health care power of attorney for Mr. Dunn, appointing Joseph Dunn as his attorney-in-fact. Mr. Dunn signed these documents on 16 September 1994 in his physician's office.
Within the next few days, either Joseph Dunn or Virginia Dunn Jones contacted Mr. Prentis again, telling him that Mr. Dunn wanted to make a will to provide equally for each of his six children. Prentis prepared a will in accordance with those instructions and, on 20 September 1994, Joseph Dunn and Virginia Dunn Jones took Mr. Dunn to Mr. Prentis' office. After making minor changes and adding a clause to disinherit any child who challenged the will, Mr. Dunn signed the will. Joseph Dunn and Virginia Dunn Jones were present when he signed the will.
On 13 October 1994, Joseph Dunn and Virginia Dunn Jones went to the office of the Clerk of Superior Court in Durham County and requested the 29 August will which Mr. Loftin had prepared. They were told the will could be released only to Mr. Dunn or to Mr. Loftin. Later that same day, they returned to the clerk's office with Mr. Dunn, who was in a wheelchair and was using oxygen. At Mr. Dunn's request, the 29 August 1994 will was retrieved from the vault and, in the presence of two deputy clerks, Mr. Dunn instructed Virginia Dunn Jones to tear it up. Mr. Prentis made a notation on a copy of the 29 August will that it had been "revoked and destroyed on 10/13/94 by Robert Lee Dunn witnessed by Glenda Lilly & Clare Clayton."
Between 13 October 1994 and 26 October 1994, Mr. Prentis was contacted by either Joseph Dunn, his wife, Yolanda Dunn, or Virginia Dunn Jones, and was told that Mr. Dunn wished to make changes to his will. The evidence is conflicting as to whether Mr. Dunn or one of the aforementioned persons instructed Mr. Prentis as to the desired changes. On 26 October 1994, Mr. Prentis went to the emergency room of Durham Regional Hospital, where Mr. Dunn was a patient, and Mr. Dunn executed a codicil to his will, in which he excluded Billy R. Dunn and Betty Mae Dunn Bullard from sharing in his estate.
The trial court submitted issues to the jury which were answered as follows:
1. Was the paper writing dated September 20, 1994, executed by Robert Lee Dunn according to the requirements of the law for a valid last will and testament?
2. Was the execution of the paper writing dated September 20, 1994, procured by undue influence?
3. Is the paper writing dated September 20, 1994, and every part thereof, the last will and ...