Trusts & Estates – Declaratory Judgment – Justiciable Controversy

The trial court erred in dismissing plaintiff’s request for declaratory judgment and finding that there was no justiciable controversy.

We reversed dismissal of plaintiff’s claim for declaratory judgment and remanded.

Plaintiff appealed from order dismissing plaintiff’s claim for declaratory relief as to whether Noah, the son of the decedent, is a beneficiary of decedent’s estate as an after-born child. Decedent married defendant Hasnaa Abitol in 2018. Decedent had a child from a previous relationship named Ava. Defendant Deborah Clark was appointed to be the guardian of Ava’s estate. Prior to decedent’s death, decedent executed a Last Will and Testament. Simultaneously with the Will, decedent also executed the 2018 Daniel Solomon Abitol Revocable Trust and the 2018 Ava Marie Abitol Special Needs Trust (SNT). In 2020, decedent died unexpectedly. Decedent died testate with the Will, Trust, and SNT having been executed prior to his death.

On November 19, 2018, decedent had amended the Trust to distribute certain Trust property to defendant Hasnaa at the time of decedent’s death. After this amendment, decedent and defendant Hasnaa underwent in vitro fertilization (IVF) treatments to conceive a child. These efforts were successful and resulted in multiple fertilized embryos. Prior to decedent’s death, the couple had selected a specific embryo for implantation. After decedent unexpectedly died, Hasnaa completed the IVF transfer process and gave birth to Noah in March 2021. Noah was born 10 months and 6 days after decedent’s death and DNA evidence confirms that Noah is the biological child of the decedent. Decedent’s will devised the residuary of his estate to the Trust. The SNT was established within the Trust for Ava Abitol, who has a disability, and she is the sole beneficiary of the SNT. Plaintiff is the trustee of both the SNT and the Trust. The Trust included provisions regarding the allocation of trust property to various family members, with the remaining balance of the Trust to be distributed to the SNT. The Trust did not define the term “children”.

Those proceedings resulted in an order to establish a new SNT (Court Ordered SNT) with Clark appointed as the trustee. Since the Court Ordered SNT was created, Ava Abitol’s mother has been receiving payments from this trust for the benefit of Ava. In the course of administering decedent’s estate, plaintiff brought a declaratory judgment action seeking to determine, among other things, Noah’s right to inherit as an after-born child; requesting a modification of the Trust to include Noah as an equal beneficiary with Ava; and reconciling the 2018 SNT with the Court Ordered SNT.

The trial court denied Hasnaa’s motion for judgment on the pleadings. Furthermore, the trial court partially granted Clark’s motion to dismiss by dismissing plaintiff’s claim for declaratory judgment on Noah’s right to inherit as an after-born child. Specifically, the trial court held that this case did not involve an issue of fact, but rather an issue of law. Accordingly, the trial court found that there was no controversy as to Noah’s right to inherit and granted the motion to dismiss for plaintiff’s first claim in his complaint.

Both plaintiff and Hasnaa argued on appeal that the trial court erred in dismissing plaintiff’s request for declaratory judgment and finding no justiciable controversy. We agreed. First, a real controversy exists between plaintiff and Clark because granting plaintiff’s claim for declaratory judgment will adversely impact Clark’s interests as guardian of Ava and trustee of the SNT. Plaintiff, as executor of decedent’s estate, owes fiduciary duties to both Ava and Noah, should Noah be considered a beneficiary of decedent’s estate. Further, as guardian and trustee of Ava and the SNT, Clark owes a fiduciary duty to Ava to ensure she is advocating and advancing Ava’s interests as a minor child with special needs. Accordingly, both parties have vested interests in the outcome of this declaratory judgment as it will impact their fiduciary duties in executing decedent’s estate. Second, the controversy that exists between plaintiff and Clark exists arises from their opposing contentions of certain intestate statutes.

Finally, the parties have legal rights that would be implicated by a ruling from the trial court and dismissal of the claim could open plaintiff up to further liability due to his role as executor of decedent’s estate. Accordingly, because an actual controversy exists between the parties and Noah and Ava’s rights would be impacted through this litigation, and there is no statutory bar to prevent this matter from being litigated, the trial court erred in dismissing plaintiff’s request for declaratory relief.

Reversed and remanded.

Abitol v. Clark (Lawyers’ Weekly No. 011-307-24, 12 pp.) (John Arrowood, J.) Appealed from Mecklenburg County Superior Court (Peter Knight, J.) Ellis & Winters, LLP, by Pamela S. Duffy, for plaintiff-appellant Michael Abitol; Shumaker, Loop & Kendrick, LLP, by Lucas D. Garber & Abigail Y. Bechtol; Kirk Palmer & Thigpen, P.A., by Stephanie C. Daniel, for defendant-appellee Hasnaa Abitol; Johnston, Allison & Hord, P.A., by Lauren S. Martin & David T. Lewis, for defendant-appellee Deborah Clark. North Carolina Court of Appeals