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Home / Courts / N.C. Court of Appeals / Trusts & Estates – Wills – Undue Influence – Insufficient Allegations – Physical & Mental Infirmity

Trusts & Estates – Wills – Undue Influence – Insufficient Allegations – Physical & Mental Infirmity

Caveator – decedent’s son – was intentionally left out of Testator’s will, and caveator contends that will was procured through the undue influence of Propounder, who was Testator’s neighbor and sole beneficiary under the will. Although Caveator sets out allegations of the 79-year-old Testator’s physical and mental weakness, he does not explain or point to any evidence as to how these factors resulted in undue influence.

We affirm summary judgment for Propounder.

Caveator contends Propounder “had both the opportunity to exert influence over [Testator] and his active role in procuring the execution of the Will in his favor was indicative of his disposition to exert influence over [Testator].” Without presenting specific facts demonstrating the will was executed as a result of Propounder’s fraudulent and overpowering influence over Testator, Caveator’s allegation of undue influence is just that: a mere allegation unsupported by any forecast of evidence.

Thus, as the trial court recognized, Caveator has failed to set forth specific facts demonstrating Propounder procured the execution of the will or exerted undue influence over Testator. Therefore, Caveator failed to carry his burden of establishing the existence of a genuine issue of material fact as to whether Testator’s will was the product of undue influence.

Paxton v. Owen (Lawyers Weekly No. 011-237-22, 9 pp.) (Toby Hampson, J.) Appealed from Transylvania County Superior Court (Mark Powell, J.) Donald Barton for caveator; Davis Whitfield-Cargile for propounder. 2022-NCCOA-844


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