The opinion of the court was delivered by: Parker, Justice.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, 125 N.C. App. 743, 483 S.E.2d 745 (1997), affirming an order granting defendant's motion for summary judgment entered by Beal, J., on 29 November 1995 in Superior Court, Catawba County. Heard in the Supreme Court 9 February 1998.
Plaintiffs are six of the seven nephews and nieces of decedent Frances Robinson Martine; defendant Charles R. Powell, Sr. is the seventh. Mrs. Martine died on 18 November 1991, leaving a last will and testament ("will") and a first codicil to the last will and testament ("codicil") which disposed of her approximately $1.4 million probate estate. This action concerns certain stocks, bonds, bank accounts, and other intangible investments worth over one million dollars that defendant received outside probate pursuant to joint ownership with right of survivorship. The codicil executed by Mrs. Martine on 16 March 1984 provides as follows:
In consideration of the kindness, help and assistance given to me over the years in the management of my affairs and otherwise by Charles R. Powell, Sr., I have, from time to time, registered, listed and titled (or otherwise provided for evidence of ownership) certain stocks, bonds, securities, notes and other similar intangible personal property owned by me jointly in my name and the name of Charles Robert Powell, Sr. with right of survivorship. It was and is my intent and I do hereby provide for and declare contractually that any such personal property standing in the joint names of myself and Charles Robert Powell, Sr., shall pass to the said Charles Robert Powell, Sr. under a Right of Survivorship if he survives me.
The codicil then provides that the property shall pass to defendant's spouse in the event defendant predeceases Mrs. Martine.
Plaintiffs allege, inter alia, that beginning in 1982 and continuing until Mrs. Martine's death in 1991, defendant had a confidential relationship with Mrs. Martine and through undue influence over her caused Mrs. Martine's solely owned stocks, bonds, bank accounts, and other intangible investments to be transferred to the joint ownership of Mrs. Martine and defendant with right of survivorship. Upon Mrs. Martine's death defendant took unencumbered ownership of the property by right of survivorship. The trial court found that no dispute as to any material fact existed and granted defendant's motion for summary judgment on all claims.
The Court of Appeals affirmed. The Court of Appeals reasoned thusly:
This codicil recognizes that Ms. Martine transferred certain intangible property to a joint tenancy with defendant and the codicil ratifies those transfers as consistent with Ms. Martine's intent and as in consideration for defendant's efforts in assisting her over the years. By challenging the transfers underlying this language in the codicil, plaintiffs in effect challenge the language of the codicil itself. At the very least, plaintiffs would have to attack the codicil to prove that the codicil was not an effective ratification of the questioned transfers to defendant. Accordingly, we conclude that plaintiffs must properly challenge the codicil here in order to challenge the transfers identified therein. Casstevens v. Wagoner, 99 N.C. App. 337, 338-39, 392 S.E.2d 776, 778 (1990).
It is well-settled that an attack upon a will or codicil must be by duly initiated caveat. Id. Collateral attacks alone, such as plaintiffs have attempted here, are not permitted. Id. . . .
We conclude that, absent a duly filed caveat, the trial court here is without jurisdiction to determine the merits of plaintiffs' claim.
The sole issue before this Court is whether the Court of Appeals erred in holding that the trial court lacked jurisdiction over plaintiffs' claims challenging the inter vivos transfers of decedent's property. Plaintiffs argue that the Court of Appeals' reliance on Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776 (1990), was misplaced. In Casstevens the plaintiffs filed a pleading denominated a "Complaint and Caveat." This pleading sought to set aside (i) the decedent's will executed in 1971 which devised all the decedent's real and personal property to Nellie Wagoner and (ii) a deed executed by the decedent in 1979 conveying 230 acres of realty to Nellie Wagoner. Under the will the plaintiffs had no legal interest in the decedent's estate and could not benefit from recision of the deed unless the will was set aside. Hence the action was an impermissible collateral attack on the decedent's will. Id. at 339, 392 S.E.2d at 778.
By contrast plaintiffs in the instant case are beneficiaries under decedent's will and have alleged in their complaint that "[i]n accordance with the terms of the will of Mrs. Martine the property . . . would become part of the residue of her estate were it turned over to her estate [de]void of any language or claim that the same was jointly held property of Mrs. Martine and the Defendant. As a consequence of the failure of the Defendant to turn over jointly held property to the estate, Plaintiffs and other residuary legatees are being deprived of a portion of their legacy." Plaintiffs, unlike the plaintiffs in Casstevens, are not challenging the validity of the will and codicil but rather are contending that but for the inter vivos transfers, allegedly obtained by undue influence, decedent would have been the sole owner of the property at her death and that the property would have been distributed as part of decedent's residual estate under her will.
Based on these allegations, Casstevens is not dispositive of this action. Although the codicil refers to the inter vivos transfers, plaintiffs' action challenging the inter vivos transfers is not a collateral attack on the codicil which deprives the superior court of jurisdiction. Further, we do not agree with the Court of Appeals' opinion that the language in the prayer for relief asking that "all terms and provisions providing for, or relating in any way to, joint ownership of property by Frances R. Martine and Charles R. Powell, Sr. be declared null and void" constitutes an attack on the codicil. The three subdivisions which follow this language in the prayer for relief clarify that plaintiffs are referring to ownership of the property, not to language in the codicil.
In reaching its Conclusion that plaintiffs must file a caveat to challenge the inter vivos transfers, the Court of Appeals also concluded that the codicil ratified the transfers and that "at the very least plaintiffs would have to attack the codicil to prove that the codicil was not an effective ratification of the questioned transfers to defendant." Defendant, however, ...