A recent decision by the North Carolina Court of Appeals reinforced the distinction between claims over which the trial divisions have original jurisdiction and claims which are properly brought before the Clerk of Court.[1] In Morgan-McCoart v. Matchette, an elderly woman, Ms. Simpson, created a revocable trust and executed a Durable Power of Attorney in 2008. Her daughter, Julie, was named as her trustee and attorney-in-fact, and her other daughter, Claudia, was named as the alternate trustee and attorney-in-fact. Ms. Simpson was declared incompetent in 2009. Julie lived in California, making it difficult to fulfil her duties. Accordingly, Julia…
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Challenging the Validity of a Will vs. the Construction of a Will: North Carolina Court of Appeals Clarifies
Earlier in September the North Carolina Court of Appeals highlighted the procedural difference between challenging the validity of a will through a caveat proceeding and resolving questions as to the construction of a will through an action for declaratory judgment.[1] Plaintiff, Deborah Hildebran (“Hildebran”) was listed as the executrix of her father’s will (the “Will”). Upon her father’s death, the Will was probated in common form before the clerk and Hildebran was appointed executrix. The Will contained several handwritten markings, notably a line that struck through the name of the testator’s granddaughter Chanté Brittian…
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Partition Proceedings in North Carolina
Real property owned by multiple individuals is held either as tenants in common, joint tenants with rights of survivorship, or (in the case of married couples) tenants by the entirety. Disputes may arise among joint owners of real property regarding its best and highest use or because personal relationships deteriorate. When parties can’t agree whether to sell the property or how to divide and/or use it, they can turn to the court’s for assistance. In North Carolina, joint owners of property are entitled to an actual partition of the disputed land as a matter of right, and may institute a special proceeding before…
