In re Estate of Lisk (Lawyers Weekly No. 012-217-16, 10 pp.) (Lucy Inman, J.) Appealed from Anson County Superior Court (Richard Brown, J.) N.C. App. Unpub.
Holding: After the testator’s wife had a debilitating stroke, her daughters (who were also her guardians and health-care attorneys-in-fact) removed her from the testator’s home and initiated proceedings against the testator, including for alimony and equitable distribution. Where the testator opposed equitable distribution by asserting that he and his wife were not legally separated, he was not required to assert an abandonment claim, and res judicata does not bar his heirs from asserting an abandonment defense to the wife’s claim for a statutory share of his estate.
We affirm the trial court’s order granting the heirs’ motion for summary judgment and denying the petition for an elective share and year’s allowance.
Barring the defense of abandonment would penalize the heirs for the testator’s failure to raise and litigate a claim that was premature, given his opposition to the entire proceeding for alimony, support, and equitable distribution. Despite the testator’s disputes with his step-daughters, the record reflects his steadfast desire to maintain his relationship with his wife and his choice to assert no claim against her. Barring his heirs from asserting the defense of abandonment against claims by his wife’s estate would not only conflict with our precedents regarding the criteria for res judicata and collateral estoppel, but would also violate our state’s policy favoring maintenance of marriage.