In re the Will of Jones

302 S.E.2d 480, 62 N.C. App. 325, 1983 N.C. App. LEXIS 2840

Opinion

HEDRICK, Judge.

In In Re Will of Puett, 229 N.C. 8, 13, 47 S.E. 2d 488, 492-493 (1948) (citation omitted), our Supreme Court held:

[W]here a will has been duly probated, the record affords conclusive evidence of its validity, until vacated by appeal, or declared void by a court of competent jurisdiction in a proceeding instituted for that purpose, and that the offer of proof of a will alleged to have been subsequently executed, without more, is not a direct but a collateral attack on the validity of the will. It is only by a caveat or proceeding in that nature that the validity of a properly probated will, and one without ‘inherent or fatal defect appearing on its face’ . . . may be brought in question.

See also In Re Will of Charles, 263 N.C. 411, 139 S.E. 2d 588 (1965). In the present case, the trial court correctly allowed the respondent’s motion for summary judgment and dismissed the petition with prejudice. The petition discloses on its face an insurmountable bar to the relief sought.

The record discloses that the Last Will and Testament of Maria Kerr Jones, dated 14 December 1967 with a codicil attached and dated 18 February 1970, has been probated in common form. The petition in the present case asking that a paper writing dated 13 October 1977 be probated in solemn form as a second codicil, does not constitute a caveat proceeding to the will of Maria Kerr Jones, dated 14 December 1967 and already probated in common form.

Affirmed.

Chief Judge VAUGHN and Judge Arnold concur.