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In re Estate of Sharpe

Court of Appeals of North Carolina

April 3, 2018

In re: Estate of THOMAS S. SHARPE, Deceased.

          Heard in the Court of Appeals 6 March 2018.

          Appeal by petitioner from judgment entered 23 June 2017 by Judge G. Wayne Abernathy in Alamance County Superior Court No. 16 E 150.

          Holt, Longest, Wall, Blaetz & Moseley, PLLC, by W. Phillip Moseley and Peter T. Blaetz, for petitioner-appellant.

          Oertel, Koonts & Oertel, PLLC, by Geoffrey K. Oertel, for respondent-appellee.

          TYSON, JUDGE.

         I. Background

         Thomas S. Sharpe and Alma G. Seward were married on 21 November 2009, and remained married until Thomas S. Sharpe's death on 14 January 2016. Thomas S. Sharpe was 86 years old and Alma G. Seward was 75 years old when they were married. Both had been married previously and had adult children from their prior marriages.

         On 18 February 2016, a will for Thomas S. Sharpe ("testator") was entered into probate by his son, Thomas F. Sharpe. Attached to the will was a pre-marital agreement and a document entitled the "Thomas S. Sharpe Irrevocable Trust Agreement."

         The testator's will designates Thomas S. Sharpe's two adult children from a previous marriage, Susan Wall and Thomas F. Sharpe, as co-executors. The will bequeaths all of the testator's estate to the "Thomas S. Sharpe Irrevocable Trust Agreement." The two beneficiaries of the trust are Thomas F. Sharpe and Susan Wall. The will leaves nothing to the testator's wife at his death.

         The pre-marital agreement was executed between Thomas S. Sharpe and Alma G. Seward on 4 November 2009. The pre-marital agreement has two schedules attached, Schedule A and Schedule B. Schedule A lists all the separate property belonging to Thomas S. Sharpe and Schedule B lists all the separate property belonging to Alma G. Seward. The pre-marital agreement states that "each party agrees that the separate property shall include, but not be limited to, the property described hereafter, and that the separate property of the party shall remain the separate property of the other party."

         Following Thomas S. Sharpe's death, Alma G. Seward filed a petition to claim an elective share of her husband's estate on 23 June 2016. "Under N.C. Gen. Stat. § 30-3.1 et seq., a wife who survives her husband may choose to take an 'elective share' of the decedent's assets rather than taking under the decedent's will." In re Estate of Heiman, 235 N.C.App. 53, 56, 761 S.E.2d 191, 193 (2014) (footnote omitted). The executor, Thomas F. Sharpe ("Respondent"), filed an answer and reply denying Alma G. Seward's right to claim an elective share.

         The Alamance County Clerk of Superior Court conducted a hearing on 17 January 2017 and entered an order granting Alma G. Seward's petition for an elective share. Thomas F. Sharpe appealed to the Alamance County Superior Court on 31 January 2017. On 23 March 2017, Alma G. Seward died. Alma G. Seward's personal representative, Steven Lawrence Seward ("Petitioner"), filed a motion to substitute a party. That motion was granted by an order filed 25 May 2017.

         The matter was heard on 15 May 2017 in the superior court. The superior court entered a judgment filed 23 June 2017 denying Petitioner's petition for an elective share. Petitioner gave timely notice of appeal.

         II. Jurisdiction

         Appeal lies of right in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2017).

         III. Issues

         Petitioner argues the superior court erred in concluding the pre-marital agreement between Alma G. Seward and Thomas S. Sharpe waives Alma G. Seward's right to claim an elective share in his estate. Petitioner also contends the superior court improperly took judicial notice of Alma G. Seward's will to interpret the pre-marital agreement. We address each argument in turn.

         IV. Standard of Review

         On appeal of estate matters determined by the clerk, the superior court reviews an order of the clerk for purposes of determining: (1) whether the findings of fact are supported by the evidence; (2) whether the conclusions of law are supported by the findings of fact; and (3) whether the order or judgment is consistent with the conclusions of law and applicable law. N.C. Gen. Stat. § 1-301.3(d) (2017).

         The superior court, and therefore this Court, only reviews those "findings of fact which the appellant has properly challenged by specific exceptions." In re Estate of Lowther, 271 N.C. 345, 354, 156 S.E.2d 693, 700-01 (1967); see also In re Estate of Pate, 119 N.C.App. 400, 403, 459 S.E.2d 1, 2-3 (1995) ("The standard of review in this Court is the same as in the Superior Court.").

         V. Analysis

         A. Pre-marital Agreement

         Both parties agree the pre-marital agreement at issue was executed both voluntarily and after full disclosure. The order of the clerk reviewed by the superior court contained ten findings of fact. These include:

1. A prenuptial agreement was executed between Thomas S. Sharpe and Alma Seward on November 4, 2009.
2. Thomas S. Sharpe and Alma Seward were marred on November 21, 2009.
3. Thomas S. Sharpe died January 14, 2016 still married to Alma ...

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