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.
General Rule 2: ‘One cannot be estopped by accepting that which he would be legally entitled to receive in any event.’ Lamanski, 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)). 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.
What happened in Lamanski case:
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 the estate challenging sister would not have received the specific property outside the will.
There is an 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. Application: This was discussed in the Peacock case. In Peacock, 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. Son challenges the will. The son’s case challenging the will was dismissed 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."
Confused? Distinctions run tight. Bottom line: If you think you are going to challenge a last will and testament, better not accept property beforehand. If you do, better have counsel review how that will affect your ability to challenge.
For cases involving estate litigation, challenges to the last will and testament, trust attacks, contact Kirk Sanders at Hendrick Bryant Nerhood Sanders & Otis LLP, the NC Fiduciary Litigation Attorneys at 336-723-7200.
[tags: NC estoppel estates lawyer; nc estate litigation attorney, nc fiduciary litigation lawyer]
[category: estate litigation north Carolina]
