A Surry County Superior Court rejected a challenge to the last will and testament in $1 million estate. The challenger was the brother of the deceased testator. The brother alleged the testator was incapable of making the will due to competency.
Judge Hinnant granted summary judgment to the family friend named as the estate’s beneficiary under the will. The caveator’s attack was defeated and the caveator’s case was dismissed.
The testator, Mr. Creed was 91 at the time of his death. He did not have a spouse or any children. Pursuant to his Last Will and Testament, Mr. Creed’s $1 million estate was given to a close family friend that he had farmed with for over thirty years. Both Mr. Creed and his beneficiary raised cattle and helped each other. Mr. Creed earned his money the hard way and he was a good at saving money.
Nonetheless, when Glenn Creed died, his brother Ray filed a challenge to the will. Ray was represented by an attorney. Ray and Glenn Creed did not have a good relationship per depositions between the parties.
The caveator, Ray Creed, contended the will is invalid because Glenn Creed allegedly did not have the mental capacity to draft a will, given his age and because he could not read or write. Illiteracy is not a grounds that someone cannot make a will, argued the propounder’s attorney, Kirk Sanders.
The estate and the propounder of the will of Glenn Creed hired estate attorney, Kirk Sanders a partner at Hendrick Bryant Nerhood Sanders & Otis in Winston-Salem, to defend him in the will caveat defense.
“This was an all or nothing case. If the propounder lost, he would get nothing from the estate,” said Sanders. Mr. Sanders’ practice focuses on making and defending challenges to wills, estate litigation and trust litigation.
Per Mr. Sanders, in Ray Creed’s deposition, Ray admitted he tried to take Glenn Creed to Ray’s attorney to draft a new will. “That wasn’t really very helpful to his case,” Sanders said. “It was pointed out that if Glenn had the capacity to approve a will for him, then he had the capacity to do a will three weeks earlier.”
Sanders’ arguments in court included an affidavit submitted by the attorney who drafted two wills for Glenn Creed — one that was drawn up shortly before Glenn Creed’s death and another that was drafted seven years before the last will. That affidavit stated that both the new and old wills named the family friend as the beneficiary of the estate. Further the drafting attorney declared that Mr. Creed by himself discussed with attorney how he wanted his estate to be distributed. The attorney read the wills to the testator. The affidavit also said Glenn Creed drove himself to the attorney’s office for the prior will and was adamant about how the will should be executed.
In light of the affidavit, Judge Patrice Hinnant awarded summary judgment to the estate, meaning the propounder will receive the entire estate. As a result the caveat litigation was dismissed. A complete victory for the defender of the will.
VERDICT REPORT
WILL CAVEAT- DEFENSE VICTORY
Amount in controversy: $1 million
Case name:In Re: Estate of Creed
County: Surry County Superior Court, File No.: 12 E 593
Date of Ruling: Jan. 11, 2016
Attorney for Propounder/Estate: Kirk Sanders of Kurtz Whitley in Winston-Salem
Attorney for plaintiff: Kevin Altman, Winston-Salem-based solo practitioner
NC Estate Litigation Attorney