Estoppel & Challenging last will & testament in NC

Posted on Mar 18, 2016 in challenging a last will and testament, News

Will Caveat Issue: What if the caveator has already accepted property under the will he/she wants to attack? Does the Doctrine of Estoppel apply?

Estoppel General Rule: one who accepts the benefits under a will is estopped to contest the will’s validity. Said another way: one who accepts the benefits of a transaction or under an instrument can’t turn around to take a later position inconsistent with that previous transaction/instrument.

Estoppel Rule 2/Distinction/Exception: ‘One cannot be estopped by accepting that which he would be legally entitled to receive in any event.’ Lamanski case, 149 N.C. App. at 651, 561 S.E.2d at 540 (citing Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (1970); quoting In re Will of Peacock, 18 N.C. App. 554, 556, 197 S.E.2d 254, 255 (1973)).

What happened in Lamanski case (In the matter of the Will of J.S. Lamanski, 149 NC App. 647 (2002)):

Deceased, in her will, gave her sister a choice of personal property in the deceased sister’s residence. That sister selected and received items from the estate. But then the executrix of the estate failed to deliver certain items that the sister claimed she should have. So the sister turned around and challenged the validity of the will. The question became has the sister become estopped from challenging the will when she previously relied upon it to get personal property and assert rights to other personal property.

If the will was overturned in the will contest, then the challenging sister would receive 1/3 of the entire estate. But she wouldn’t be entitled to first pick of all the personal property in deceased’s house. Thus since the sister accepted the assets, she’s not entitled to challenge the will. The law prevents that challenge.

Moral: be careful what you accept.

Now in my very first will caveat (will contest in NC) back in the late 90’s, I won based on accord and satisfaction. The deceased, before he died, had given one of his children a large check and said this was an advancement on her benefits under his future estate and that this was full and final payment. That child accepted the check with the accord and satisfaction language. We got her case tossed in summary judgment because of accord and satisfaction. Now that is the best face I could put on that case. It had some warts that would complicate the fact scenario substantially.

Back to Estoppel. There is one exception to the estoppel: While the general rule is one is estopped from challenging the last will and testament if one accepts the benefits under that will, nonetheless, one cannot be estopped by accepting that which one would be legally entitled to receive in any event. This was discussed in the Peacock case. In the Peacock case the deceased’s son received and accepted money per to the will. The money was less than the amount he would have received if the will had been set aside. The son’s case was tossed at a summary judgment hearing. The N.C. Court of Appeals later reversed the summary judgment based on estoppel and held that since the son-will challenger would have been entitled to receive the money regardless, the son was not estopped from asserting a subsequent will contest hearing.

Like in Peacock, in another case the caveator (Challenger) received and accepted the decedent’s vehicle. Under the prior will, caveator would receive the same vehicle. However, Caveator was the only child of the decedent. In this situation he would be entitled to the entire estate in his particular situation. That would include the vehicle. In the situation in this paragraph the Court of Appeals ruled “nothing in the circumstances indicates any reason why it would be inequitable for appellant to proceed with his caveat.”

When challenging a last will and testament in NC, call fiduciary litigation attorney, Kirk Sanders, 336-768-1515.

When you need someone to defend the probated will in NC, CALL Kirk Sanders at 336-768-1515

Whether Raleigh or Charlotte or Greensboro or Winston-Salem or Asheville or anywhere in between, contact us to discuss legal representation.