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In re Will of Kersey
Citations: 627 S.E.2d 309; 176 N.C. App. 748; 2006 N.C. App. LEXIS 594Docket: No. COA05-832.
Court: Court of Appeals of North Carolina; March 21, 2006; North Carolina; State Appellate Court
Katherine Ann Crowder Kersey, the caveator, appeals a summary judgment favoring Mary DeBlanc Norfleet, the propounder, which dismissed her caveat proceeding regarding the will of Robert L. Kersey, the decedent. The trial court ruled on grounds of statute of limitations and failure to prosecute. The caveator and decedent were married prior to 1953 and lived together until the mid-1980s, after which they maintained separate residences but continued frequent communication until his death on August 19, 2001. Before his death, the decedent executed a will and a codicil, naming the propounder as executrix. The will included various bequests, with the remainder of the estate designated for the caveator. On July 19, 2002, the caveator filed a caveat asserting undue influence and the decedent’s incapacity due to physical and mental infirmities. The case was transferred to superior court, and the caveator sought the decedent's medical records. By September 2004, the propounder raised defenses of statute of limitations and failure to prosecute. The trial court granted the propounder's summary judgment motion, stating that the caveator must provide notice of the caveat proceeding as mandated by N.C. Gen. Stat. 31-33, within a three-year period. The appellate review focuses on whether there are any material facts in dispute and if the moving party is entitled to judgment as a matter of law, considering all evidence favorably for the non-moving party. The statute of limitations for a will caveat is defined in N.C. Gen. Stat. 31-32, allowing anyone interested in the estate to enter a caveat within three years of probate. A caveator must meet the bond requirement set forth in N.C. Gen. Stat. 31-33 (2005) within the statute of limitations for a valid caveat to arise, as established in In re Will of Winborne. The caveat in this case was filed on 19 July 2002, within the three-year limitations period following the decedent's will admission to probate on 29 August 2001. The Durham County Superior Court confirmed that the caveator had provided the necessary bond. However, the propounder contended that the trial court correctly granted summary judgment based on the caveator's failure to provide required notice under N.C. Gen. Stat. 31-33. The court clarified that while bond requirements must be met before transferring the case to superior court, notice must be given afterward, indicating that the caveator complied with the limitations period. The trial court also dismissed the caveat for failure to prosecute, citing that notice should be timely provided after the transfer of the case. The appellate court disagreed, stating that the trial court conflated the timeline for providing notice with the timeline for commencing a caveat. Dismissal for failure to prosecute is warranted only if a plaintiff demonstrates intent to delay or frustrate the action's progress. The appellate court found no evidence of such intent or delay by the caveator. Consequently, the dismissal under Rule 41(b) was deemed erroneous, and the case was reversed and remanded for further proceedings consistent with this opinion.