In re: Estate of THOMAS S. SHARPE, Deceased.
in the Court of Appeals 6 March 2018.
by petitioner from judgment entered 23 June 2017 by Judge G.
Wayne Abernathy in Alamance County Superior Court No. 16 E
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
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
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."
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.
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
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
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.
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.
lies of right in this Court pursuant to N.C. Gen. Stat.
§ 7A-27(b)(1) (2017).
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.
Standard of Review
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).
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
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
3. Thomas S. Sharpe died January 14, 2016 still married to