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In re Will of Hendrix

Court of Appeals of North Carolina

May 15, 2018

IN THE MATTER OF THE WILL OF MARGUERITE TRAVERSE HENDRIX, Amy Hendrix Weber and Maureen Traverse Collins, Petitioners
v.
Janet Martin Tantemsapya, et. al., Respondents.

          Heard in the Court of Appeals 6 September 2017

          Appeal by caveators from order entered 10 October 2016 by Judge Susan E. Bray in Superior Court, Forsyth County, No. 16-E-1168.

          The Law Offices of Jason E. Taylor, by Gary W. Jackson and Lawrence B. Serbin, for petitioners-caveators-appellants.

          Bell, Davis & Pitt, P.A., by William K. Davis, Alan M. Ruley, and Andrew A. Freeman, for respondent-appellees.

          STROUD, Judge.

         The Caveators appeal from the trial court's order dismissing their will caveat under North Carolina Rule of Civil Procedure 12(b)(6). Because the alleged codicil upon which the caveat was based is not a valid holographic codicil on its face, we affirm.

         I. Background

         On 26 July 2016, Amy Hendrix Weber and Maureen Traverse Collins, caveators, filed a caveat to the will of Marguerite Traverse Hendrix dated 1 September 2011 ("2011 Will"). The Caveators are two of about twelve named beneficiaries under the 2011 Will. Ms. Hendrix died on 7 June 2016, and her will entered probate on 24 June 2016. Ms. Weber and Ms. Collins alleged that portions of the 2011 Will should be set aside because the decedent had executed a holographic codicil to it on 13 November 2012. The Caveators alleged that the decedent had revoked some provisions of the 2011 Will and modified others, including removing Brenner Children's Hospital as a beneficiary. A copy of the alleged codicil was attached to the complaint.

         The alleged codicil was a copy of the typewritten 2011 Will with some handwritten notations and markings through some portions of the typewritten text. At the top of the first page of the alleged codicil is a handwritten note "UPDATE Nov 13, 2012[, ]" and under this a mark which could be the decedent's initials. After the date, the handwritten notations are nearly illegible, but we will assume for purposes of considering the motion to dismiss that they say what the Caveators alleged. The caveat does not include any allegation regarding when and where the alleged codicil was found.

         Brenner Children's Hospital moved to dismiss under North Carolina Rule of Civil Procedure 12(b)(6).[1] On 10 October 2016, the trial court granted Brenner Children's Hospital's motion to dismiss the caveat with prejudice. The Caveators appeal.

         II. Motion to Dismiss

         On appeal, the Caveators argue that the trial court erred in dismissing their caveat under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The Caveators contend that Rule 12(b)(6) is not applicable to caveat proceedings, but even if it were, they contend the alleged codicil shows the decedent's intent and meets the statutory requirements for a holographic codicil, so they "are entitled to have a jury hear evidence that the requirements for a valid holographic instrument are satisfied."

         A. Applicability of Rule 12(b)(6) to Caveat

         Caveators argue that a caveat cannot be dismissed because North Carolina courts have historically required that all caveat issues be tried by a jury. The Caveators cite several cases stating the general proposition that "'on the issue raised by caveat, as provided by the statute, the issue must be tried by a jury and not by the judge.' In re Hine's Will, 228 N.C. 405, 410, 45 S.E.2d 526, 529 (1947)[.]" But the Rules of Civil Procedure still apply to caveat proceedings. See generally In re Will of Durham, 206 N.C.App. 67, 76, 698 S.E.2d 112, 120-21 (2010). In Will of Durham, this Court discussed the applicability of the Rules of Civil Procedure in estate proceedings at length, noting that the caveator's argument that the Rules of Civil Procedure did ...


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