IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-844

No. COA22-186

Filed 20 December 2022

Transylvania County, No. 19-E-270

IN THE MATTER OF THE ESTATE OF CARLTON MARION PAXTON

TERRY CARLTON PAXTON, Caveator,

v.

BERLIS ROBERT OWEN, Propounder.

Appeal by Terry Carlton Paxton from Order entered 6 September 2021 by 

Judge Mark E. Powell in Transylvania County Superior Court. Heard in the Court 

of Appeals 1 November 2022.

Donald H. Barton for caveator-appellant.

Whitfield-Cargile Law, PLLC, by Davis A. Whitfield-Cargile, for propounderappellee. 

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Terry Carlton Paxton (Caveator) appeals from an Order entered in favor of 

Berlis Robert Owen (Propounder) on 15 September 2021 granting Propounder’s 

Motion for Summary Judgment. The Record before us tends to reflect the following: 
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2022-NCCOA-844

Opinion of the Court

¶ 2 Carlton Marion Paxton (Testator) executed two wills1 during his lifetime, both 

of which expressly excluded Caveator from inheriting any of his estate. Testator 

passed away on 15 September 2019. Propounder offered Testator’s Last Will and 

Testament (Will), dated 3 March 2019, for probate on 9 September 2019. The Will 

included the following statement: “My son, Terry Carlton Paxton, has been 

specifically excluded from inheriting any of my estate for reasons known to him.” The 

Will left Testator’s entire estate to Propounder, who Testator described in the Will as 

“my friend[.]” 

¶ 3 On 16 September 2019, Caveator, son of Testator, filed a Caveat seeking to 

invalidate Testator’s Will on the grounds of undue influence. Caveator alleged, in 

relevant part:

4. That the typed document dated March 3, 2019, a copy of which 

is attached as Exhibit “A”, is not the Last Will and Testatment 

[sic] of Carlton Marion Paxton.

5. As this Caveator is informed and believes, and upon such 

information and belief avers, the execution of said typed 

document and the signature of the said Carlton Marion Paxton 

thereto was obtained by Berlis Robert Owen, et[] al. through 

undue and improper influence and duress upon the said Carlton 

Marion Paxton. 

6. At the time of the purported execution of said typed document 

 

1

 The earliest will in the Record, dated 29 May 1990, left Testator’s entire estate to Testator’s 

brother, Edward Clinton Paxton. The 1990 Will expressly provided: “My son, Terry Carlton 

Paxton, has been specifically excluded from inheriting any of my estate for reasons known to 

him.” 
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Opinion of the Court

by the said Carlton Marion Paxton, he, the said, Carlton Marion 

Paxton, was by reason of age, disease, and both mental and 

physical weakness and infirmity not capable of executing a last 

will and testament, which condition existed and continued until 

the death of the said Carlton Marion Paxton. 

¶ 4 On 10 October 2019, Propounder filed a Motion to Dismiss the caveat 

proceeding pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure. 

The trial court denied the Motion to Dismiss on 1 November 2019. 

¶ 5 On 12 July 2021, Propounder filed a Motion for Summary Judgment pursuant 

to Rule 56 of the North Carolina Rules of Civil Procedure. A hearing on Propounder’s 

Motion for Summary Judgment was held on 4 August 2021. On the morning of the 

hearing, Caveator filed and served an Affidavit in Opposition of Motion for Summary 

Judgment signed by Keith Eades (Eades), a nephew of Testator. Eades’s affidavit 

expressed concern for Testator’s mental and physical health, stating he “was very 

concerned for [Testator’s] wellbeing, feeling like [Testator] did not have long to live.” 

¶ 6 On 15 September 2021, the trial court entered its Order granting Summary 

Judgment in favor of Propounder, concluding:

The affidavit of Mr. Eades and the deposition testimony of the 

Caveator do not offer a forecast of facts sufficient to put the 

question of capacity, undue influence[,] or duress before the jury. 

Because the Caveator has made no forecast of evidence to submit 

the question of undue influence or duress to the jury, the Court 

concludes as a matter of law that the propounded will was not the 

product of undue influence or duress. 

Caveator timely filed written Notice of Appeal on 13 October 2021. 
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Opinion of the Court

Issue

¶ 7 The dispositive issue on appeal is whether the trial court erred in granting 

summary judgment in favor of Propounder.2

Analysis

¶ 8 “Our standard of review of an appeal from summary judgment is de novo[.]” In 

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Summary judgment 

is proper “if the pleadings, depositions, answers to interrogatories, and admissions 

on file, together with the affidavits, if any, show that there is no genuine issue as to 

any material fact and that any party is entitled to a judgment as a matter of law.” 

N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021). “A party moving for summary judgment 

may prevail if it meets the burden (1) of proving an essential element of the opposing 

party’s claim is nonexistent, or (2) of showing through discovery that the opposing 

party cannot produce evidence to support an essential element of his or her claim.” 

Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations omitted). 

“If the moving party meets this burden, the non-moving party must in turn either 

show that a genuine issue of material fact exists for trial or must provide an excuse 

for not doing so.” Id. (citations omitted). “If the moving party satisfies its burden of 

 

2

 Caveator makes an additional and very summary argument that the trial court erred by 

including Findings of Fact in its Order at the Summary Judgment stage, which the trial court 

described as undisputed facts. Given our disposition in this case, it is not necessary to 

address Caveator’s argument on this issue. 
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Opinion of the Court

proof, then the burden shifts to the non-moving party to ‘set forth specific facts

showing that there is a genuine issue for trial.’ ” Id. at 369-70, 289 S.E.2d at 366 

(quoting N.C. Gen. Stat. § 1A-1, Rule 56(e) (2021) (emphasis added)). “The nonmoving party ‘may not rest upon the mere allegations of his pleadings.’ ” Id. 

Additionally, conclusory statements of opinion “as opposed to statements of fact, are 

not properly considered on a motion for summary judgment.” In re Whitaker, 144 

N.C. App. 295, 299, 547 S.E.2d 853, 857 (2001).

¶ 9 On appeal, Caveator advances the argument the trial court erred in granting 

Summary Judgment in favor of Propounder because there was a genuine issue of 

material fact as to whether Testator’s Will was the product of undue influence.3 

¶ 10 “In the context of a will caveat, ‘[u]ndue influence is more than mere 

persuasion, because a person may be influenced to do an act which is nevertheless 

his voluntary action.’ ” In re Will of Sechrest, 140 N.C. App. 464, 468, 537 S.E.2d 511, 

515 (2000) (alteration in original) (quoting In re Will of Buck, 130 N.C. App. 408, 413, 

503 S.E.2d 126, 130 (1998), aff’d, 350 N.C. 621, 516 S.E.2d 858 (1999)). “The influence 

necessary to nullify a testamentary instrument is the fraudulent influence over the 

mind and will of another to the extent that the professed action is not freely done but 

is in truth the act of the one who procures the result.” Whitaker, 144 N.C. App. at

 

3

 Caveator does not challenge the trial court’s conclusion Testator had the requisite mental 

capacity to execute the Will.
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Opinion of the Court

300, 547 S.E.2d at 857-58 (citations and quotation marks omitted). “The four general 

elements of undue influence are: (1) decedent is subject to influence, (2) beneficiary 

has an opportunity to exert influence, (3) beneficiary has a disposition to exert 

influence, and (4) the resulting will indicates undue influence.” In re Will of Smith, 

158 N.C. App. 722, 726, 582 S.E.2d 356, 359 (2003) (citation omitted).

¶ 11 The North Carolina Supreme Court has acknowledged:

It is impossible to set forth all the various combinations of facts 

and circumstances that are sufficient to make out a case of undue 

influence because the possibilities are as limitless as the 

imagination of the adroit and the cunning. The very nature of 

undue influence makes it impossible for the law to lay down tests 

to determine its existence with mathematical certainty.

In re Andrews, 299 N.C. 52, 54-55, 261 S.E.2d 198, 200 (1980) (citation omitted). 

Undue influence “is ‘generally proved by a number of facts, each one of which 

standing alone may have little weight, but taken collectively may satisfy a rational 

mind of its existence.’ ” In re Will of Mueller, 170 N.C. 28, 29, 86 S.E. 719 (1915) 

(quoting In re Will of Everett, 153 N.C. 83, 87, 68 S.E. 924, 925 (1910)). Our Courts 

have identified several factors that may be relevant in determining whether a will 

was procured under undue influence over the testator, including:

“1. Old age and physical and mental weakness.

2. That the person signing the paper is in the home of the 

beneficiary and subject to his constant association and 

supervision.
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2022-NCCOA-844

Opinion of the Court

3. That others have little or no opportunity to see him.

4. That the will is different from and revokes a prior will.

5. That it is made in favor of one with whom there are no ties of 

blood.

6. That it disinherits the natural objects of his bounty.

7. That the beneficiary has procured its execution.”

Andrews, 299 N.C. at 55, 261 S.E.2d at 200 (quoting Mueller, 170 N.C. at 30, 86 S.E. 

at 720 (1915)). Although the caveator is not required to demonstrate the existence of 

every factor to prove undue influence, the caveator must establish a prima facie case. 

See id. at 55, 261 S.E.2d at 200 (“[T]he burden of proving undue influence is on the 

caveator and he must present sufficient evidence to make out a prima facie case in 

order to take the case to the jury.”). In summary:

For influence to be undue, “there must be something operating 

upon the mind of the person whose act is called in judgment, of 

sufficient controlling effect to destroy free agency and to render the 

instrument, brought in question, not properly an expression of the 

wishes of the maker, but rather the expression of the will of 

another. It is the substitution of the mind of the person exercising 

the influence for the mind of the testator, causing [her] to make a 

will which [she] otherwise would not have made.” 

In re Will of Campbell, 155 N.C. App. 441, 455, 573 S.E.2d 550, 560 (2002) (alterations 

in original) (quoting In re Will of Prince, 109 N.C. App. 58, 61, 425 S.E.2d 711, 713-

14 (1993) (citations omitted)).

¶ 12 In the case sub judice, Caveator alleges the existence of undue influence based 
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Opinion of the Court

on the following physical and mental conditions: Testator was seventy-nine years of 

age, suffering from poor health; Testator was on oxygen twenty-four hours a day, 

seven days a week; Testator suffered from chronic obstructive pulmonary disease; 

Testator was on a suprapubic catheter; and Testator was severely depressed. 

Caveator also points to the following testimony to support the existence of undue 

influence: Testator executed a prior will not naming Propounder as his beneficiary 

and Testator “expressed a strong desire that his property remain in the Paxton 

family[.]” In further support of this argument, Caveator notes Propounder “was not 

a relative, but a neighbor and caretaker, who assisted in the procuring of the Will in 

which he was named as beneficiary.” 

¶ 13 In briefing on appeal to this Court, Caveator makes arguments as to the 

existence of physical and mental weakness relevant to undue influence; however, 

Caveator fails to explain or point to any evidence in the Record as to how these factors 

resulted in undue influence in the case at hand. Specifically, Caveator contends 

Propounder “had both the opportunity to exert influence over [Testator] and his active 

role in procuring the execution of the Will in his favor was indicative of his disposition 

to exert influence over [Testator].” Without presenting specific facts demonstrating 

the Will was executed as a result of Propounder’s fraudulent and overpowering 

influence over Testator, Caveator’s allegation of undue influence is just that: a mere 

allegation unsupported by any forecast of evidence. See Whitaker, 144 N.C. App. at 
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2022-NCCOA-844

Opinion of the Court

302, 547 S.E.2d at 858 (“[C]onclusory statements of opinion are not evidence properly 

considered on a motion for summary judgment.”). 

¶ 14 Thus, as the trial court recognized, Caveator has failed to set forth specific 

facts demonstrating Propounder procured the execution of the Will or exerted undue 

influence over Testator. Therefore, Caveator failed to carry his burden of establishing 

the existence of a genuine issue of material fact as to whether Testator’s Will was the 

product of undue influence. Consequently, the trial court did not err in granting 

Summary Judgment in favor of Propounder. 

Conclusion

¶ 15 Accordingly, for the foregoing reasons, we affirm the trial court’s Order 

granting Summary Judgment to Propounder.

AFFIRMED.

Chief Judge STROUD and Judge JACKSON concur.